If what one should be concerned with is 'objectively manifested intent'114 rather than actual intent, there seems little point in pretending that one is trying to determine the latter. If the rationale of the 'intent' test is to expose insincerity, perhaps the preferable approach would be simply to focus squarely upon the issue of whether the danger of insincerity in the particular case is sufficiently grave to justify withholding the evidence from the jury, than to use the (fictional) vehicle of 'intent'. And if we are isolating insincerity as a hearsay danger deserving of such treatment, should we not, for the sake of consistency, subject all hearsay dangers to the same type of analysis? What is rapidly emerging, therefore, is a strong argument in favour of a functional approach based on an examination of all four hearsay dangers in the context of the particular case.
In this Chapter we have examined three possible approaches to the problem of implied assertions. The most inflexible of these is the approach advocated by the House of Lords in Kearley: implied assertions fall automatically within the scope of the hearsay rule. This approach is a potentially far- reaching one, as it is theoretically possible for countless facts to be inferred from words or conduct.115 Yet two types of evidence examined in the previous chapter--evidence of false statements and evidence of silence-- have not hitherto been considered to be caught by the implied assertions____________________