EVIDENCE AND POWERS OF ATTORNEY BILL [Lords]. (Hansard, 4 June 1940)

§ The Attorney-General (Sir Donald Somervell)

I beg to move, "That the Bill be now read a Second time."

I rise to move the Second Reading of this Bill, dealing with three or four different matters, which I shall try to explain, very briefly, on going through the Clauses. The procedure in ordinary peace-time for enabling British subjects, or other persons, who have business here to swear affidavits abroad which would be accepted in this country is quite inadequate in war-time when there are so many of our fellow citizens serving overseas. It is, therefore, thought right that special procedure should be introduced to enable such documents to be taken before officers of the various units with which these men may be serving. Clause 1, Sub-section (1) provides that: The Lord Chancellor may by order provide for empowering officers of His Majesty's naval, military and air forces, holding such ranks or appointments as may be specified in the order, to administer oaths and take affidavits during any war in which His Majesty is engaged for all or any purposes for which an oath may be administered or affidavit taken by a commissioner for oaths appointed under Section one of the Commissioners for Oaths Act, 1889. There are many occasions on which someone serving abroad may require to do that—one obvious example is where a man is concerned in winding up an estate. Sub-section (2) of the same Clause deals with those who might be in enemy territory, or territory which might be occupied by the enemy, and enables the Secretary of State to provide for empowering persons serving in the Diplomatic, Consular or other foreign service of a Power which by arrangement with His Majesty have undertaken to represent him in those countries, to administer oaths or take affidavits.

Clause 2 deals with quite a different matter. The Censorship Department realised that cases might arise in which intercepted communications might be material evidence in criminal cases—for example, cases under the Trading with the Enemy Act. Under the ordinary procedure officials of that Department would have had to attend the trial—probably the commital proceedings and the trial— 822 to give what would be purely formal evidence that these were the documents which had been intercepted by the Censorship Department. They asked, therefore, whether their officials could be exempt from that duty, both on the grounds of saving time, and also that there might be cases where, at the time of a trial, the official who was involved had subsequently been sent overseas. Anything which affects the law of evidence, particularly in criminal matters, is one which requires very careful consideration, and my Noble Friend asked a small Committee, consisting of Mr. Justice Humphreys, Sir Gerald Dodson and other lawyers familiar with criminal work, to look into this matter, and to see whether they thought these demands could be met without any danger or injustice. The result is that Clause 2 provides that a certificate by a competent officer that, either a particular identified document has been intercepted, or a photograph of the document which has been intercepted, shall be admissible as evidence in the ordinary courts. That does not mean it is conclusive if the defence has grounds for showing that it is not what it purports to be. It merely means it is admissible as evidence, and, as a result, formal evidence by officers of the Department will be dispensed with.

Clause 3 deals with powers of attorney. The fact that so many men are outside this country serving overseas will mean that a great many more powers of attorney have to be executed by those abroad than was the case in ordinary times. There are many acts for which a power of attorney are necessary, and the main purpose in Clause 3 is to provide certain safeguards. Obviously, it does open certain temptations to certain people to fabricate powers for those who have gone abroad and cannot look after their own affairs, and to seek dishonestly to claim advantage by fraudulent use of those powers. These matters, together with the matters in Clause 1, were looked into by a Committee presided over by Lord Maugham—that there should be extra safeguards to prevent fraudulent action of that kind. This Clause provides that there shall be a file of an affidavit by a solicitor who drew up the powers. I think that these are reasonable safeguards, and that it is also true to say that the ordinary law with regard to powers of attorney does not provide any particular 823 safeguard—at any rate it is regarded by some people as somewhat lax in that respect. Dealing therefore with the situation we have at present, with many people overseas who cannot look after their own affairs, it is reasonable that we should have special safeguards.

Sub-section (3) is designed to protect third parties. I may want a somewhat different provision in Committee, and therefore I just make that passing reference for the time being. Clause 4 deals with a technical defect in the law. Under the present law, office copies of these documents filed in this country or in Northern Ireland are accepted at courts in this country or in Northern Ireland but not in Scotland. As the object of this Bill is that these documents can be filed in any of the three countries, the Clause puts the law on a uniform basis and enables office copies or the equivalent to be accepted in the courts of all the three countries wherever the original may have been filed.