(1)Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).
(2)Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.
(3)Restraint proceedings are proceedings—
(a)for a restraint order;
(b)for the discharge or variation of a restraint order;
(c)on an appeal under section 43 or 44.
(4)Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.
(5)Nothing in this section affects the admissibility of evidence which is admissible apart from this section.
Cases considering section 46 3
[2012] EWCA Crim 67 · 1 February 2012Interprets
The court treated the hearsay provision for restraint proceedings as part of the statutory context supporting their civil character. (see paras [39]; [47])
The application of sections 2 to 4 of the Civil Evidence Act 1995 to restraint proceedings as they apply to civil proceedings confirmed that those proceedings are civil. The wording did not indicate a radical statutory change in their character. (see paras [39]; [47])
[2011] EWCA Crim 446 · 4 March 2011Limits
Section 46 expressly makes hearsay admissible and imports the Civil Evidence Act 1995 for restraint proceedings. The court held that this express treatment, absent from confiscation provisions, told against applying that Act to Part 2 confiscation. (see para [50])
Section 46(1) prevents exclusion of hearsay in restraint proceedings. The court relied on this express, restraint-specific provision as part of its inference that no equivalent rule applies to confiscation. (see para [50])
Section 46(2) applies sections 2 to 4 of the Civil Evidence Act 1995 to restraint proceedings. The court relied on its express limitation to restraint as support for rejecting direct application to confiscation. (see para [50])
[2011] EWCA Crim 143 · 8 February 2011
The court noted that hearsay was admissible in restraint proceedings, while stressing that the evidence still had to establish reasonable cause under section 40(2). (see paras [28]; [33]; [51]-[55])
The court noted that the Civil Evidence Act hearsay provisions applied to restraint proceedings and expressed concern that the reliability provision had not been considered despite the largely hearsay evidence. (see paras [28]-[33])
What each judgment says about section 46 is in the case-law panel in the full Act.
96.Under earlier confiscation legislation, applications for restraint orders in the High Court frequently rely on hearsay evidence. However, there are considerable limitations on the admission of hearsay evidence in the Crown Court. Section 46 makes it clear that hearsay is admissible in restraint proceedings in the Crown Court in the same way as in the High Court, in accordance with the general principle adopted in the Act of transferring tried and tested restraint procedures to the Crown Court.