§ Order for Second Reading read.
§ 6.28 p.m.
§ The Home Secretary (Sir Frank Soskice)
I beg to move, That the Bill be now read a Second time.
This is a short Bill, somewhat technical in character, but it makes what, in the view of the Government, is an important change in the law of evidence in criminal cases. I should state at once that its effect is this. It makes admissible as evidence in criminal cases certain commercial records which hitherto have often been admitted and have been thought to be properly admissible. This was the view which was taken by the courts until a recent decision of the House of Lords in the case of Myers v. Director of Public Prosecutions.
I think that I can probably indicate to the House the purpose of the Bill, which is, in effect, to deal with the situation which results from the decision of the House of Lords to which I have referred, by shortly describing what was in issue in that case. It was a criminal case. A man called Myers had been convicted on a number of counts relating to stolen cars. He was a man of not inconsiderable ingenuity and he had developed a method which was as follows. He used to acquire a wrecked car and, having acquired it—having purchased it—he used to disguise a car which he had stolen—to make it fit into the details in the logbook of the wrecked car. In this way he was enabled to carry on a handsome business in disposing of stolen cars camouflaged by the logbooks of the wrecked cars which he had otherwise acquired.
There was only one serious defect about a scheme which I think ultimately led to his undoing. What he could not do was to change the block numbers 1427 which were indelibly stamped on the engines of those stolen cars. The numbers so stamped on the engines of the stolen cars had been recorded, not in the logbooks, but in records which were kept by the car manufacturers who produced those cars. The position was that, whilst the car was on the assembly line, a workman would record on a card the block number stamped on the engine. The card was then microfilmed and the card, having been microfilmed, was destroyed, so that the microfilm record remained.
When the case came for trial the keeper of the microfilm gave evidence. The evidence he gave was from his microfilm records. His evidence showed that cars stolen by Myers had block numbers belonging to stolen cars and not to the wrecked cars to which the logbooks purported to relate.
It was held that that evidence was hearsay evidence and was, accordingly, not admissible evidence. The argument was that what the witness, the person who kept the microfilm records, told the court was something that another person—the workman—had asserted when he first recorded the number on the engine and the evidence was given for the purpose of establishing the truth of that workman's record. The result was that the evidence was held by a majority decision of the House of Lords to be inadmissible evidence. It was held to be inadmissible on the ground that hearsay evidence is not admissible in a criminal case.
That, perhaps, is too general a statement, because there have been certain admissible and recognised exceptions which permit of evidence which would otherwise be objectionable on the ground that it was hearsay being admitted in court. That, however, did not cover these microfilm records and, as I have said, the House of Lords by a majority, with some reluctance, decided that that evidence was not admissible. It was conceded that records of engine block numbers were most valuable in identifying stolen cars and that, without such evidence, the prosecution would be severely hampered in a number of cases of fraud and defendants who deserved to be convicted might escape conviction. It was recognised by the House of Lords that the practice was a desirable one, 1428 but obviously their Lordships had to bow to what they decided was the law; and, as I have said, by a majority this evidence was excluded.
The Government agree that it is certainly desirable that the rule excluding this evidence should be altered so as to make it admissible. The Bill was worked out before the present Government came to power, and I pay my tribute to my predecessor, the right hon. Member for Hampstead (Mr. Brooke), for having initiated the studies on the Bill. There are various different circumstances in which hearsay evidence is admissible. Evidence is admissible from public records. Evidence in the form of statements made by persons who have since died is admissible. There are a number of other categories of exceptions, but none of them applies in this case.
The way in which the Government have thought it right to go about the Bill is to model it on the basis of an existing Act—the Evidence Act, 1938—which provides for the admission in civil proceedings of a good deal of documentary evidence which would otherwise not be admissible in court. The Bill, which I commend to the House, is one which is applicable to criminal proceedings and seeks to make by its provisions a not very different category of documents admissible in criminal cases as is admissible now in civil cases.
The House will see that Clause 1(1) is the principal provision of the Bill. It provides as follows:any statement contained in a document … shall, on production of the document, be admissible as evidencein any criminal proceedings as evidence of a fact, provided that certain conditions are satisfied.
The first of those conditions is a general one, namely, that direct evidence of the fact would be itself admissible. The second condition, which the House will see in paragraph (a), is that the document must be, or form part of, a record relating to any trade or business, and must have been compiled from information suppled by persons who had personal knowledge of the fact or may have reasonably been supposed to have had such knowledge. This provision enables, in the Myers type of case, the keeper of the microfilm records to produce records 1429 compiled from information supplied by workmen on the assembly line.
The third condition, which appears in paragraph (b), is that the person who supplied the information—in the Myers case, the assembly line workman—is physically unable to give evidence, or cannot be identified or found, or could not reasonably be expected to remember the facts—that is, the actual block number on a particular engine in the Myers case. This provision recognises that, although the person having knowledge of the facts should be called to give evidence whenever practicable, the evidence of a central record might be more reliable than the recollection of the workman on the assembly line.
Subsections (2) and (3) contain ancillary provisions relating to the admission of evidence under subsection (1). The definitions in subsection (4) of terms used in the Bill take account of modern techniques for the keeping and storage of information by microfilm, computer, or tape recording. For example, the statement need not be recorded in words, but may be recorded by symbols, or even by electronic impulses stored in a computer.
That is the short objective of the Bill. It is designed to prevent persons who may be thoroughly guilty being enabled to escape because in the nature of things their evidence cannot be brought home to them. It is a Bill which contains what I hope the House will think are the necessary safeguards to see that persons accused are not faced with evidence which they are not able properly to test by examination and otherwise. I believe that the Bill fills a useful purpose and closes an existing gap which until the Myers decision was not thought to exist in our criminal evidence law.
I commend the Bill to the House.
§ 6.41 p.m.
§ Mr. Edward Gardner (Billericay)
We on this side of the House welcome this small but important measure of reform of our law of evidence. This part of the law, as I am sure the Home Secretary will be the first to concede, is composed of a complex mosaic of judge-made law, amended by Statutes during this and the last century. We think that it is a most important branch of the law, because one of its main purposes, if not its sole purpose, 1430 is to ensure that the law shall be impartial and fair and ultimately result in a just decision.
Unhappily, it is also a branch of the law that is marked by what one cannot help but feel is undue difficulty and confusion, and it frequently produces a waste of money and of time that could well be and, we think, ought wherever possible to be avoided. I suggest that there is hardly a branch of the law that stands more in need of reform than the law of evidence, and it is high time that we did something about it. Happily, the Bill makes a start on the right road.
Perhaps the most difficult problem is to decide how far the hearsay rule should be modified, particularly as to documents. As I understand the hearsay rule—and I have the authority of a most distinguished jurist—it is the oral or written assertion of persons other than the witness who is testifying, and as such that statement will be inadmissible as the truth of what is being asserted. It seems quite clear that any relaxation of the present rules needs the strictest care to avoid substituting dangerous laxity for absurd rigidity.
As applied to criminal cases—and the Bill amends the law in criminal cases—one clear principle appears to dominate all others. It is the need to give special protection to accused persons. I do not think that anyone would dispute that as a necessity. There has been consequently a firm refusal to admit documents which are not proved by their makers, and the prohibition of the admission of hearsay evidence as such.
As the Home Secretary has pointed out, the recent decision of the House of Lords in the Myers case has made it now the law that the sort of document that was then put before the court would be inadmissible, as being hearsay evidence. We have no doubt on this side of the House that an amendment to the law was necessary. Indeed, the House of Lords made it quite clear that the Legislature would have to intervene to bring the law up-to-date and make such records admissible.
It is quite obvious that in relaxing the rules there is always the danger, and one has to be very careful in this, of creating an injustice. I suggest to the House that we must remember that 1431 justice is always two-sided. In criminal law it must be justice to the accused and justice to the public at large. Over-rigid rules aimed at protecting the accused person can all too easily lead to injustice, for it is just as much an injustice where the guilty escapes as where, in the rarest of cases, an innocent person is convicted. It would seem that in our passion—and I think that it is a laudable passion that we have—to give the accused person every chance of acquittal we at times seem all too ready to make and apply rules which defeat the ends of justice by allowing the guilty to go free.
The Bill allows hearsay evidence and, as the Home Secretary has indicated, hearsay evidence is of such a character that it must be by its very nature dangerous and as such is to be mistrusted. As the right hon. and learned Gentleman pointed out, it escapes the test of cross-examination. It opens the way to abuse, and its admission in criminal cases must always be viewed with the utmost caution.
We have precedents for the admission of hearsay evidence under the provisions of various statutes. The obvious one in criminal cases is perhaps the Bankers' Books Evidence Act, 1879. The present Bill seems to us to have an excellent ambition and, in the main, carries out its objectives without any offensive provisions, but looking at Clause (1,b) that is, the provision relating to the person who supplies the information, one reads, and with approval in the main, words which were first introduced into the Evidence Act, 1938. I have no criticism to make of that use of those words, but in addition to those words there is the provision in effect that the person who supplied the information cannot reasonably be expected to remember the facts. It seems to me that this is a somewhat novel approach and I am not at all certain that it is an introduction of a provision that could be abused.
When the Solicitor-General replies to the debate, I suggest that it would be very useful if he could deal with this particular use of this provision, because although it completely satisfies the requirements, as they were exposed as being necessary in the Myers case, it seems to us that it opens the door a little too wide. It may be that such a provision could invite the admissibility of 1432 evidence that could well lead to injustice.
§ Mr. W. T. Williams (Warrington)
Does the hon. and learned Gentleman not feel that the thing which he fears is well safeguarded against by the fact that in the words in brackets(having regard to the time which has elapsed since he supplied the information and to all the circumstances)there is sufficient provision for the exercise of the discretion of the judge which I am sure the hon. and learned Gentleman will agree with me in criminal cases is invariably not abused?
§ Mr. Gardner
I would agree entirely with the hon. and learned Member. I had carefully read those qualifying words that they provide a safeguard, as, no doubt, they are intended to provide.
In most cases one can rely on the discretion and good sense of the judge to ensure that a provision of this kind is not abused, but I do not regard it as a complete answer in every case to say that we can rely on the learned judge to exercise his discretion not only with propriety, but with complete good sense, so that there is an immaculate safeguard. If there is need for a safeguard, the safeguard should be in the Bill, and, if anything appears in the Bill which is likely to be abused, we should, in my view, delete it.
It is for that reason that I invite the Solicitor-General to make such comments as he may upon my appreciation, if it be a valid appreciation, of a potential danger.
§ Mr. W. T. Williams
The hon. and learned Gentleman will recall that there is already in our criminal law provision for precisely this kind of discretion. One thinks, for instance, of the judges' rules on the admissibility of evidence, statements made by an accused person, and the like. It is almost invariably left to the discretion of the judge. If for any reason the judge mistakes his discretion or uses it wrongly, there is always available the Court of Criminal Appeal or the Divisional Court.
§ Mr. Gardner
The hon. and learned Gentleman is well aware that the discretion which the judge would exercise where an accused person has made a statement, whether voluntary or 1433 involuntary, in certain circumstances, can, if it is abused, be tested by the Court of Criminal Appeal. But, as he knows, a decision by a judge to exercise discretion in cases of that kind is rarely interfered with by the Court of Criminal Appeal. In considering legislation of this kind, I think it right that we should be guided by such models as we have and avoid pitfalls which we can foresee. I see the possibility of a pitfall here, and I think it right that the House should have the opportunity of hearing the Government's views on this form of words.
Apart from that apprehension and note of caution, there is little else in the Bill which we regard as exposed to serious criticism. The Bill is, obviously, the beginning of what we hope will be a substantial reform of this branch of the law. We are most anxious on this side, as, I am sure, are many right hon. and hon. Members opposite, including the Attorney-General, the Solicitor-General and the Home Secretary, to see rapid, sensible and useful law reform. We may have our conflicts about the best manner in which this reform should be achieved, but we recognise, as the last Conservative Administration recognised, that the law of evidence is one of the most complex parts of the English law.
The last Conservative Administration decided that it was time for its complete review and for a careful scrutiny of such rules as the restriction on the admission of hearsay evidence and the extent to which documentary evidence may be admitted.
Last September, a Conservative Lord Chancellor and Home Secretary together ordered a comprehensive review of the law of evidence to be undertaken by the Law Reform Committee and the Criminal Law Revision Committee. Both those Committees have among their chairman and members some of the most distinguished members of the judiciary. The terms of reference which were given to them were:To review the law of evidence in civil and criminal cases, and to consider whether changes are desirable in the interests of the fair and efficient administration of justice; and in particular to consider what provisions should be made for modifying rules which have ceased to be appropriate in modern conditions.1434 The Bill falls within the guidance which those terms of reference gave. In general, it allows for an amendment of the law of hearsay which is desirable—to quote the terms of reference again—in the interests of the fair and efficient administration of justice".For that reason, we on this side support it.
§ 6.55 p.m.
§ Sir Eric Errington (Aldershot)
I am rather overwhelmed by the large number of hon. and learned Gentlemen who are considering these matters, but I should like certain assurances about the Bill from the Solicitor-General. Everyone agrees that, in principle, it meets the Myers case and is a good Measure, but I am concerned lest, in certain respects, it extends the law. The points I have to raise are essentially Committee points, although I think it of importance to ascertain now what the position is.
My hon. and learned Friend the Member for Billericay (Mr. Gardner) has already referred to the Bankers' Books Evidence Act, 1879. There was a subsequent similar Act dealing with criminal matters. I should like to be satisfied that the Bill does not in any sense extend the area at present covered by the law relating to the production of bankers' books.
The second point arises in connection with a statement which might be made by an accused person to a policeman who subsequently became unavailable for any of the reasons set out in Clause 1(1,b). Would such a statement be admissible under the Bill where it might not be admissible under the present law?
Thirdly, when the Home Secretary said that one of the devices which might be used on these occasions was a computer, my heart sank a little because it is not yet established that computers are necessarily and always accurate. In the circumstances, I feel that further consideration might properly be given to that matter.
Those are the points which I raise. I have put them shortly but, although they are, in a sense, Committee points, they raise questions which affect my view of the Bill.
§ 6.59 p.m.
§ Mr. Forbes Hendry (Aberdeenshire, West)
It is with the greatest diffidence that I speak on a Bill of this kind after the speeches we have had from the right hon. and learned Gentleman the Home Secretary and my hon. and learned Friend the Member for Billericay (Mr. Gardner), to whom I listened with the greatest respect. Nevertheless, I feel that I must speak because the Bill applies to Scotland and there are serious sidelights to it which could radically alter the law of Scotland. I am very surprised that there is not a Scottish Minister present.
There is, of course, no Scottish Law Officer in the House, but at least the Secretary of State, or one of the Under-Secretaries of State, might have had the courtesy to appear on the Front Bench and give the Scottish point of view. I am extremely upset about this, because it seems to me that the Scottish and English laws of evidence are completely different and although the foundation of the Bill is a case in the House of Lords which, of course, applies in some instances to Scotland, that case was not dealing with Scottish law. Indeed, the Scottish law was not under consideration.
I am not learned in the law, but it is my view that the law of hearsay in criminal cases in Scotland is sufficient to cover this case, because hearsay has always been admitted in a criminal case where it forms part of the res gestae of the case.
In the circumstances which have been described, the hearsay to which the House of Lords objected formed part of the res gestae and would have been admitted in a Scottish case. That is one point on which I would like the opinion of the Solicitor-General as far as he considers himself sufficiently learned in Scottish law to be able to give an answer. There is another and much more vital aspect for Scotland.
This concerns whether the Bill will materially affect the basic and cardinal principle of the law of Scotland that evidence must be corroborated in criminal cases. The Bill as drafted may very well, it seems to me, import a completely new principle into Scottish law in that, in certain circumstances, evidence may not require corroboration, especially where it is evidence brought in under 1436 this Bill. I suggest there is some substance for this anxiety because, in the law of Scotland, certain writings are regarded as privileged which make a half publication in themselves. These include merchants' books.
All the authorities we have been given so far have been drawn from the law of England. We have heard about bankers' books, but, as far as I know, Scottish law is different in that merchants' books in themselves—and they might be taken to cover those records which came up in the Myers case—have a privileged position, although possibly, in criminal law, it seems to me that merchants' books and records would require corroboration in the same way.
It seems to me that, under the Bill, the necessity for corroboration may disappear altogether, because Clause 1(3) gives discretion to the court as to the weight which may be given to evidence of this kind. It might well be that a Scottish court would think that Parliament intended it to decide a case upon such records without the corroboration essential in Scotland in the past.
For that reason, I ask the Solicitor-General to deal with that point. If he does not find himself able to do so, I hope that he will consult the Scottish Law Officers about it and, possibly at a later stage, give us a balanced judgment. I see that the Secretary of State for Scotland has appeared on the Front Bench. I do not think that he heard the first part of my argument. Perhaps he is sufficiently advised by his Law Officers to reply to the points I have raised. If he does so, I shall be much obliged.
§ 7.5 p.m.
§ The Solicitor-General (Sir Dingle Foot)
This, I understand, is the first occasion on which the hon. and learned Member for Billericay (Mr. Gardner) has addressed the House from the Front Bench. May I, as an old personal friend, congratulate him on his elevation?
The hon. and learned Gentleman referred to the difficulty and confusion that we often find in the law of evidence and, as he rightly said, both the law of evidence in criminal matters and the civil law of evidence are being examined, in the one case by the Criminal Law Revision Committee and in the other by the Lord Chancellor's Law Reform 1437 Committee. But, of course, these examinations are bound to take time. It may be a matter of months or even of years before these committees report and before it is possible for Parliament to take the necessary action.
The Government and, I think, the Opposition, regard this matter as being one of urgency. Anyone who reads the speeches in the House of Lords in the Myers ease realises that the three noble Lords who formed the majority arrived at their conclusion with considerable reluctance but felt that they could not themselves extend the law and that it was a matter for Parliament. In fact, what we had in the speeches of all five Law Lords was a recommendation that the law should be clarified and if necessary amended. That is what we are doing with the Bill.
The hon. and learned Gentleman, of course, spoke about any relaxation of the present rules as being, on the face of it, undesirable. We all know the objections to hearsay evidence. A passage from an earlier edition of Halsbury said this:The reasons for the rejection of 'hearsay' are many—the fallibility of human nature and human memory, the impossibility of testing its truthfulness for want of cross-examination, the opportunities for fraud its admission would open, the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the absence of an oath, the want of an opportunity to observe demeanour and the waste of time involved in listening to idle rumour.These are, of course, objections with which we are familiar in hearsay evidence and which have been developed by the courts over the last 250 years. But, as Lord Pearce pointed out in his speech in the Myers case, scarcely a single one of these considerations has any relevance to the kind of evidence we are considering at this moment.
We are considering a case where the best evidence is the evidence of the record, although technically it may be hearsay evidence. Hon. Members opposite have had in mind the desirability in such cases as the Myers case of leading this sort of evidence on behalf of the prosecution. But it may happen that the defence would desire to lead evidence of this character, and one would have a considerable miscarriage of justice from the point of view of the defence if such evidence were shut out for the future.
1438 One can imagine a Myers case in reverse in which it might be possible for the defence to defeat the prosecution's case by calling evidence of records of this kind. That is, we believe, one reason, and a very powerful reason, why such evidence should be available—and available, of course, to either side in a criminal case.
The hon. and learned Gentleman specifically referred to the last five lines in Clause 1(1,b):… or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information he supplied.I say at once that that is new, but it seems to us that a provision of this kind is required when we consider such a case as the Myers case. 'These lines are intended to cover the case of eye witnesses who cannot be expected in the nature of things to have any knowledge of the facts, where they simply have to keep a record.
Even in the Myers case, if the witnesses who marked the original numbers on the card could have been found, they would have been, one supposes, quite valueless as witnesses, because they could not have had the slightest recollection of the facts. It is inconceivable that they could have remembered the precise numbers which they had recorded in the way which my right hon. and learned Friend the Home Secretary has described—and remembered—them years afterwards.
Therefore, even if these witnesses had been available, they could not have given evidence of the slightest value either to the prosecution or to the defence. But that would not in any way have affected the value of the record. We are dealing with a case where the record has value and the recollection of the particular witnesses has none. Therefore, although this is an innovation, it is a desirable innovation and enables us to meet the sort of circumstances encountered in the Myers case.
The hon. Member for Aldershot (Sir E. Errington) asked for an assurance that the Bill does not extend the law. In a sense, it extends the law because it adds one more category to the limited categories of hearsay evidence which may be 1439 admitted. But it does not represent any extension of the law in principle.
The hon. Gentleman then asked whether the Bill affected in any way the law relating to bankers' books. I can give him an assurance on that. Clause 2(2) provides thatNothing in this Act shall prejudice the admissibility of any evidence which would be admissible apart from the provisions of this Act.The law on the production of bankers' books under the Bankers' Books Evidence Act is unaffected by the Bill.
The hon. Gentleman went on to ask whether the Bill affected statements made to police officers. Again, I can give him an assurance. If he looks at the scope of the Bill, he will see that it refers only to commercial records and that it cannot touch in any way statements made to police officers.
I say at once that I approach the observations of the hon. Member for Aberdeenshire, West (Mr. Hendry) with very considerable diffidence. I do not claim to be competent to address the House on the law of Scotland, but I undertake to ensure that the points which he made are fully examined—indeed,I will examine them in consultation with my colleagues the Scottish Law Officers—before the Committee stage. But, pending that consultation, I can reassure the hon. Gentleman in some measure.
The hon. Gentleman described the law as to res gestae. As I understand it, the law of Scotland in that connection is precisely the same as the law of England. In England, there are certain statements which are held to be part of the res gestae and are admitted in evidence.
The hon. Member expressed apprehension about whether this Bill might affect the law of Scotland on corroboration in criminal cases. He is right, I understand, in suggesting that the law of Scotland on corroboration goes somewhat further than the law of England. But there are many cases in England in which corroboration is required either by statute or as a matter of practice. I will fortify myself before the Committee stage on the law of Scotland, but I would say that, where the law requires corroboration of any kind of evidence or in any circumstances, the Bill does not touch it at all.
§ Sir E. Errington
I thank the Solicitor-General for what he has said. I should like an assurance, however, that the matter raised by the Home Secretary about records, including records kept by computer, will be dealt with, because it is important. The Bill opens a door, as I understand it, and if the door admits something of error it might be a serious matter.
§ The Solicitor-General
I am sorry that I overlooked that point. It is possible that a record may be in error, however it is kept, whether by mechanical means such as computers or in any other way. We cannot rule out the possibility of some kind of clerical error being made. That is something with which the court will have to deal. But we are dealing with a particular class of evidence which consists in records of matters of which witnesses, in the nature of things, cannot have any exact recollection or often any recollection at all. Therefore, one can prove or disprove only what is in issue by reference to the records. What we say is that it defeats the purposes of justice when perfectly good evidence—what is, indeed, in the circumstances, the best evidence—is excluded because of this somewhat technical application of the rule against hearsay.
Therefore, we cannot rule out the possibility that even the computer may go wrong. We say that we are far more likely to reach an accurate conclusion about somebody's guilt or innocence in the courts if this form of evidence were admissible in future. Therefore, the risk which the hon. Gentleman has in mind is much less than the risk which we run under the law as it has recently been declared in the House of Lords.
We will consider again very carefully before and during the Committee stage the various points of detail made by the three Members on the Opposition benches who have addressed the House. However, there is no real objection to the principle of the Bill, which I commend to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).