§ 10.30 a.m.
§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That the Chairman do now report to the House that the Committee recommend that the Civil Evidence Bill [Lords] ought to be read a Second time.
This Bill introduces a number of important reforms in the law of evidence. It is based on the recommendations made by the Law Reform Committee in its reports on hearsay evidence in civil proceedings and on the rule in Hollington v. Hewthorn and on privilege in civil proceedings. We are concerned with three reports of the Law Reform Committee. I begin by paying a tribute to the work of the Committee. It consists 424 of a number of very distinguished lawyers who have devoted a great deal of their valuable time to considering important matters of law reform. The Government and, I am sure, all right hon. and hon. Members, are most grateful to them for their assistance.
The Bill relates to the law of evidence, which is, in the jargon applied to these things, lawyers' law and, as such, is a technical subject. It is certainly not a party political matter.
The law of evidence in civil cases was referred to the Law Reform Committee by the Conservative Administration in September, 1964, and the recommendations which the Committee has made have largely been taken up by the present 425 Administration in the Bill. The Government are most anxious that these important matters should receive the fullest possible consideration so that what eventually appears on the Statute Book will represent the most satisfactory solution to a number of problems which have been bedevilling the law of evidence for a long time.
The Bill is a technical one, but this does not mean that it is either an unimportant one or a Bill without interest to the layman. The technicalities of the law of evidence have been a source of confusion and delay to litigants in many instances, and the Bill tackles a number of them.
The principal matter dealt with is the law relating to hearsay evidence. At present, under existing law and practice, the evidence of what somebody said cannot be given in court unless it falls within one of the exceptions to what is called the "hearsay rule". The hearsay rule, as is well known, is based on the principle that if one wants to prove a fact which one's opponent denies, one must call the witness who saw it happen and not rely on what that eye-witness told somebody else about it. There have been recognised to be a number of obvious exceptions to this rule, despite the apparently sound principle on which it is based, and the application of it has undoubtedly given rise to many difficulties.
The Law Reform Committee found the rule to be unsatisfactory in certain respects and criticised it in paragraph 5 of its Thirteenth Report, where it said:The hearsay rule in its present form, with its numerous exceptions, in our view lacks rational basis, results sometimes in injustice and often in avoidable expense, and introduces much unnecessary complication in the preparation and hearing of civil actions.The courts have sometimes been equally outspoken about the rule and its exceptions. I give, as an example of that, what I think is an interesting passage in a judgment of Lord Justice Hamilton in the case of Ward v. H. S. Pitt & Co., reported in 1913 2 Kings Bench Division, page 130, at page 138, where, dealing with the matter of admitting evidence of declaration against a deceased person's interest, the learned Lord Justice said:The case is exceptional, not to say anomalous. The evidence thus admitted is hearsay and the person on whose credit it rests is 426 beyond cross-examination and is not even seen by the jury. The ground is that it is very unlikely that a man would say falsely something as to which he knows the truth, if his statement tends to his own pecuniary disadvantage. As a reason this seems sordid and unconvincing. Men lie for so many reasons and some for no reason at all; and some tell the truth without thinking or even in spite of thinking about their pockets, but it is too late to question this piece of eighteenth century philosophy.In addition to dealing with hearsay at large, so to speak, the Bill takes account of technological developments which have occurred since the rules of evidence were formulated. It deals with such practical and up-to-date matters as computerised and microfilmed records. It can, therefore, be said to do more than merely simplify a difficult branch of the law in that it brings the law up-to-date with modern current commercial practices.
The Bill is in two parts. Part 1 deals with the law relating to hearsay evidence and, as I have indicated, is based on the Thirteenth Report of the Law Reform Committee. Part II deals with the existing rule that a previous conviction cannot be used in subsequent civil proceedings as evidence that the person concerned committed the crime of which he was convicted. That is what lawyers call the rule in Hollington v. Hewthorn. This part of the Bill is based on the Fifteenth Report of the Law Reform Committee. Part II also deals with the law relating to privilege, but not the law relating to Crown privilege, which was the subject of a recent and far reaching decision of the House in the case of Conway v. Rimmer.
By your leave, Mr. Yates, I turn now to the detailed provisions of the Bill. Clause 1 abolishes the common law exceptions to the hearsay rule by providing that hearsay is to be admissible only if it is made admissible by the Bill or by some other statutory provision or, of course, by the agreement of the parties. This is cardinal. The test of the admissibility of hearsay is to be applied by discovering somewhere a statutory provision either in the Bill now before the Committee or in some other Statute. It is to be either in that context or by agreement between the parties.
Clause 1 is designed to implement the recommendation which is contained in paragraph 44 of the Thirteenth Report 427 of the Law Reform Committee where it says that…no evidence of fact, other than direct oral evidence by a person having personal knowledge of the fact, shall be admissible save as provided in that Statute giving effect to the recommendations "—that is, the recommendations contained in the Committee's Report—or any other statute or in rules or court.That is the recommendation which has the effect of substituting the proposed statutory provision for the common law exceptions. The Bill does not, therefore, affect the existing statutory exceptions in any way. In future the only exceptions will be those contained in the Bill or in some other statutory provision.
Clauses 2 to 5 of the Bill make provision for the admissibility of hearsay which is wide enough to supersede nearly all the common law exceptions to the rule. Those exceptions which are not superseded by these general provisions are expressly superseded by virtue of the terms of Clause 9. Accordingly, the relevan hearsay evidence becomes admissible under the Bill and not at common law.
Clause 2(1) makes what I may call first-hand oral or documentary hearsay generally admissible. This is the nub of the Bill. It is this provision which makes the hearsay admissible. It does so subject to rules of court, which are dealt with in Clause 8. I refer to Clause 8 out of numerical order because of its importance. It provides that under rules of court, first, the party seeking to rely on hearsay must give notice of it and, secondly, that his opponent can by counter notice insist on the maker of the statement being called as a witness, but at his own risk as to costs if he so insists without good reason.
Reverting to Clause 2(2), that sub-section imposes conditions on the admission of an out-of-court statement made by a person who is called, or is intended to be called, as a witness by the party seeking to put the statement in. It is clearly an arguable point, no doubt, that a statement should not be put in evidence by virtue of this Clause where a party has called, or intends to call, as a witness the person who made the statement. As I say, it is an arguable point. The position taken up in the Bill, which 428 I recommend as the correct one, is that the court should have a discretion about it. The leave of the court is required before the statement is given in evidence.
Clause 2(3) provides that, where a statement is made otherwise than in a document, it can be proved only by the direct evidence of the maker or a person who heard or otherwise perceived the statement being made.
Clause 3 deals with the matter of the previous statement of a witness. Under existing law and practice the previous out-of-court statements of a witness can be put in with a view to discrediting him or where they are contained in a document which he has used to refresh his memory, but they cannot be put in as evidence of facts stated in them. That may be regarded as a rather odd feature of the present position. Clause 3 provides that these statements are to be admissible as evidence of any fact stated in them of which the witness could have given direct oral evidence.
The adoption of this principle is in accordance with the view of the majority of the Law Reform Committee, as expressed in paragraph 37 of its Report, where, in relation to an eye witness's statement made shortly after the event, it is said:…whether consistent or inconsistent with his oral evidence, the majority think not only that it may sometimes be a useful aid in assessing the probative value of the latter, but that also it may possess in its own right a higher probative value than the so-called 'best evidence' with which it is inconsistent. They would expect statements made while the witness's recollection was still fresh to be freely admitted by the judge as evidence of the facts which they tended to establish.Clause 4 makes documentary evidence more readily available as evidence of facts stated therein in cases where, broadly, the document is a record compiled by a person acting under a duty.
Clause 5 makes admissible in civil proceedings, subject to the conditions specified in the Clause and to rules of court, a statement contained in a document produced by a computer used regularly to store or process information for the purposes of activities regularly carried on during the period of such use. The safeguards spelt out in this Clause are technical in a double sense, because they have regard to what can be called 429 technicalities of the law of evidence, and also to the peculiar features which attach to these computers and modern instruments.
The Law Reform Committee's Report does not expressly deal with computers, but its publication in May, 1966, led to a considerable amount of interest being shown in its applicability to computerised records, and it has been thought right to frame the legislation implementing the Report in such a way as to make it possible to adduce such computerised records in evidence.
The greatly increased use of computers for the keeping of records is a development of which we are all aware, but there does not appear to be any authority on the admissibility of their products as evidence. It seems that in some cases the courts have been willing to look at what is called a "print-out" from a computer and accept it as evidence of the facts stated, but in others they have been unwilling to do so. It seems that in strict law such a "print-out" cannot be brought within the terms of the Evidence Act, 1938.
Clause 5(1) makes information contained in a document produced by a computer admissible, subject to rules of court, as evidence of any relevant facts stated therein, provided that a number of conditions specified in the following subsection are satisfied. The first of these conditions embodies the cardinal feature of the Clause, namely, that it is the regular and routine use of a computer which makes its products reliable enough to have substantial probative value attributed to them.
The second condition is that over the relevant period there must have been regularly supplied to the computer in the ordinary course of the activities in question information of the kind contained in the statement. The third condition is that the computer must have been operating properly throughout the material part of the relevant period, or that any defect in its operation must not have been such as to affect the production of the document or accuracy of its contents. The fourth condition is that the information contained in the statement in fact reproduces, or is derived from, information supplied to the computer in the ordinary course of the relevant activities.
430 Thus, we endeavour to keep the law of evidence up to date with these technological advances, and I am bound to confess that, for my part, for a satisfactory consideration of the merits, if they be merits, of Clause 5 it would be desirable to have a good deal of knowledge not only of the law of evidence but also of computer practice, technique and science.
Clauses 6 and 7 contain provisions supplementary to Clauses 2 to 5, and Clause 8, to which I referred earlier, provides for the necessary rules of court. Clause 9 makes admissible under the Bill certain categories of hearsay evidence which are at present admissible at common law. These matters are safeguarded. As I explained earlier, Clause 1 abolishes the common law exceptions to the rule against hearsay. These exceptions in the common law which it is desirable to preserve to fit into the pattern of the Bill are required to be set out somewhere in statute form, and Clause 9 fills what would in its absence be a gap in the process. Clause 10 contains a number of necessary definitions, including that of a document, and a film, which includes microfilm.
Part II of the Bill, as I mentioned earlier, implements the two other Reports of the Law Reform Committee, the Report of the Committee on the rule in Hollington v. Hewthorn, and the Report on privilege in civil proceedings. Clause 11, in accordance with the Committee's recommendation, reverses what is known as the rule in Hollington v. Hewthorn. Under this rule a conviction by a criminal court is not admissible in subsequent civil proceedings to prove that the convicted person had in fact committed the offence of which he was convicted. By reversing this rule Clause 11 makes a previous conviction in a United Kingdom Court admissible in civil proceedings to prove that the person convicted committed the conduct on which the conviction was based. The Clause does not make a conviction conclusive evidence, let it be observed, but the burden of proof is placed on the party who wants to dispute the correctness of the conviction.
Clause 12 makes a finding of adultery in a matrimonial court, or an adjudication of paternity in affiliation proceedings, admissible in subsequent civil proceedings as evidence that the person concerned committed the adultery, or, as the case may be, is the father of the 431 child to which the finding or adjudication relates. At present a wife can divorce her husband on the ground of his adultery with a Mrs. X, but when Mr. X tries to divorce his wife on the ground of the same act of adultery he has to prove it all over again. The Bill will alter this, and in doing so make its contribution towards simplifying our divorce procedure.
In that connection I mention that the House is at present considering proposed changes in the law of divorce. As I understand it, the appropriateness and effect of the proposals in this Bill under the head with which I am now dealing will not be diminished by changes which are contemplated in the law of divorce in a Measure now under consideration elsewhere.
Clause 13 makes proof of a previous conviction conclusive evidence in the special case of subsequent defamation proceedings that the person convicted committed the offence in question. It therefore goes further than Clause 11, by making proof of a conviction in defamation cases conclusive. In doing so it implements the recommendations in paragraph 29 of the Law Reform Committee's Report. Here one is concerned not only with the probative value of the evidence, but also with the question of policy, and the question of policy is whether a convicted person ought to be allowed to use libel actions as a means in effect of reopening criminal proceedings. The Committee, rightly in my view, came to the conclusion that this ought not to be allowed, and Clause 13 accordingly prevents it.
The Clause does not extend to acquittals. There are two views on whether a person should be entitled to say with impunity that an acquitted person was really guilty. The Committee took the view that he should not be so entitled, and there is, as one will readily appreciate, much to be said for finality in these matters. On the other hand, it could be greatly in the public interest that a rogue lucky enough to have got off should be publicly exposed. This argument seems to me to be the better one of the conflicting arguments on this point. The high standard of proof in criminal proceedings, essential though it is, provides sufficient safeguards to the rogues who go free, and the Bill, rightly in my 432 opinion, comes down firmly in favour of giving no conclusive evidential effect to an acquittal.
Clauses 14 to 17 give effect to the Law Reform Committee's Report on Privilege in Civil Proceedings. Clause 14 extends the privilege against self-incrimination to cover a witness's spouse. As the Law Reform Committee says in its Report, there is something distasteful about compelling a man to incriminate his wife. Though some may say that there are arguments that there ought to be no privilege against incrimination at all for anybody, whilst such a privilege exists I think that it should extend to the spouse, and I invite the Committee to indicate its agreement with that point of view.
Clause 15 confers legal professional privilege on communications with a patent agent made for the purpose of proceedings under the Patents Act, 1949, before the Comptroller of Patents or the Patents Appeal Tribunal.
Clause 16 abolishes various obsolete privileges whose abolition was recommended by the Law Reform Committee. The only one which I need mention is perhaps the right of a witness in some cases to refuse to answer questions tending to show that he had committed adultery. The privilege was needed, it may be thought, when adultery could be severely punished. This is not the case today, and the privilege is no longer thought to be necessary.
Clause 17 makes a number of consequential amendments relating to privilege, and Clause 18 deals with interpretation and certain other matters. As the Bill applies only to England and Wales, Clause 19 makes it clear that the Parliament of Northern Ireland can enact corresponding legislation. Clause 20 deals with commencement and other matters. It is proposed that the provisions relating to previous conviction, to defamation proceedings, and to privilege should come into force at once. The remainder will come into force on appointed days.
So that the matter may be dealt with compendiously, I think that I should mention two respects in which the recommendations of the Law Reform Committee have been departed from. The first is that the Bill applies to magistrates' courts. That point was dealt with in paragraph 48 of the Committee's Thirteenth Report, where it reminds us that 433 although the great bulk of the magistrates' work lies in criminal law, their courts also exercise jurisdiction in a wide assortment of civil matters. Many of these, such as licensing matters, and various kinds of local government, public health, and planning matters, differ considerably from ordinary civil litigations inter partes, but the work of the domestic court is of the same character as civil litigation in the High Court, or the county courts. The Report goes on to say that it recognises the desirability of applying the same rules of evidence in civil cases irrespective of the court in which they are litigated, but at the conclusion of paragraph 49 the Committee says:After close consideration, we have reached the conclusion that the new statute which we have recommended should not apply to civil litigation in magistrates' courts.Rightly or wrongly—I hope the Committee will think rightly—having weighed the pros and cons in that matter we have arrived at the conclusion that it is desirable that the Bill should apply to magistrates' courts.
The second respect in which the recommendations of the Law Reform Committee have been departed from is that the Bill brings courts-martial into its provisions where the rule in Hollington v. Hewthorn appears. This is contrary to recommendation (5) of the Law Reform Committee's Fifteenth Report. The arguments for and against this treatment of the matter are set out in the Report. They have had the consideration of the Government and it is thought desirable that courts-martial should be brought into this part of the Bill. These two instances of departure from the recommendations of the Law Reform Committee must be added to the departure to which I referred earlier, from recommendation (9) of the Fifteenth Report, which reads:(9) in defamation actions, where the statement complained of alleges that the plaintiff has been guilty of a criminal offence, proof that he has been convicted of that offence and that the conviction has not been set aside should be conclusive evidence of his guilt "—this is the point where we have thought it right to depart from the recommendation—and proof that he was acquitted of that offence should be conclusive evidence of his innocence…434 This is a technical Bill and I am grateful to the Committee for listening to me with such apparent patience. The Measure deals with important and difficult aspects of the law of evidence. I know that hon. Member will give it the most careful consideration and I hope that they will conclude that this is a valuable piece of law reform which can make a useful contribution towards the process of rationalising, simplifying and improving our law.
§ 11.3 a.m.
§ Sir Peter Rawlinson (Epsom)
I thank the Solicitor-General for his careful and clear explanation of what he called a technical Bill. To my ears every word was magic, but I thought of the unfortunate Members who are not technical lawyers and wondered what would have happened had the Second Reading been taken on the Floor of the House. Some hon. Members may have thought that they might have been elsewhere—perhaps engaged in more useful activity.
The Solicitor-General said that this is the first time that he has been a member of a Second Reading Committee. I have had this experience on one occasion previously. When one is faced with a technical subject such as this one must accept that as it may be of wide importance legally it is vital that those with technical knowledge should be able to make useful contributions. Would it not have been more sensible to hold this Committee at another time, perhaps in the evening when practising lawyers might have been present? That was done when the present Chancellor of the Exchequer was Home Secretary and was handling the Criminal Justice Bill. It was taken at a time in the evening when practising lawyers could attend, and that was a useful exercise. As the Solicitor-General has said that he wants the Measure to be given the most careful consideration I trust that he will bear this suggestion in mind.
I join with the hon. and learned Gentleman, on behalf of my hon. Friends, in paying tribute to the Law Reform Committee. I was glad that he had the grace to comment that this matter arose from the reference to that Committee by the Conservative Administration in 1964. I have always felt that the kernel of all practical law reform rested on 435 alterations being made in the law of evidence. At the heart of improving our practice and procedure generally lies an improvement in the law of evidence, resulting in the shortening of proceedings, a reduction in costs and the giving of greater confidence to those who are taking part in the administration of civil justice.
In the past the sound basis of best evidence has always been the confrontation of a person giving evidence with his adversary in court before a tribunal to assess the value of that evidence. The confrontation principle has proved a sound one, and it has stood the test of time. However, it required exceptions to be made. Many exceptions were made in the 19th century, as the hon. and learned Gentleman indicated, but there came a time when the judges felt that they could not make any more law in the form of exceptions.
I remember that in the case of Myers, when I was appearing before the House of Lords as counsel—it was a case of receiving motorcars and the numbers on engine blocks were required to be given—the House of Lords felt that the power of extending exceptions had ended and that a statute was needed to do it. This Bill, based on the recommendations of the Law Reform Committee, ensures that statements made by persons with knowledge should prima facie be admissible, with safeguards, and this seems a sensible improvement. First-hand hearsay, which is an extension of the Evidence Act, will be of great assistance. In other words, what the soldier said will be evidence.
This still would not make better evidence the statement of a witness who declared, "He said he sold the ducks", to which Mr. Justice Holmes said, "You mean he said 'I sold the ducks'", to which the witness courteously replied, "No, he never mentioned your Lordship's name at all". However, it is sensible that we should be able to introduce into the admissibility of evidence matters which are statements and which may reveal the truth of the matter much more than the presence of a witness.
I share with the Solicitor-General a sense of awe at the mention of computers and other technological matters. It is 436 obviously essential that these matters are taken into account. The irony will be that businesses which use computers will be assisting their adversaries if they engage in litigation. This Bill will facilitate the investigation of such matters. I understand that tapes and various other matters must be produced on discovery, and that they can be computerised by the adversary. But what if these matters have not yet been transcribed, and if they are not intelligible without a transcript? This question has been posed and we shall have to consider it further.
With the increased use of microfilm records, and so on, it may be that the "print-out" will not be intelligible without the assistance of some other document. We will have to consider this further, although, under Clause 5, that computer "print-outs" may not be directly involved. There seems to be a considerable amount of uncertainty about the standard of evidence that must be given of the material that is fed into a computer, and I have particularly in mind the provision which refers to information supplied "in any appropriate form". I am not clear about this, although I do not expect the hon. and learned Gentleman to answer these somewhat complicated questions now. I am merely pointing to some of the difficulties which appear to arise.
We must not make respectable, merely by using the word "computer", any "print-out", document or film which comes from one of these machines unless we can be satisfied that what has been fed into it is accurate and reliable. Nevertheless, in reviewing the law of evidence we must have a Clause dealing with the matter of statements produced by computers, and I am glad that such a provision has been included in the Bill.
I agree with the Solicitor-General that in considering the rules of court it is important that residual discretion should be with the court itself. The rules of court are important. This is the only controversial matter I wish to raise. From recent experience, I am not content to leave such matters to the Rules Committee. I would prefer Parliament to do the work and that Parliament should spell out exactly what the rules should be. I appreciate that we must have the advice of the Rules Committee and that, 437 when that Committee sets out what it believes the rules should be, Parliament should give such advice every consideration. But let us ensure that the Rules Committee carries out the powers delegated to it by Parliament. We do not want any muddle or Ministerial veto.
I note that the Law Reform Committee suggested that these rules should be in a Schedule to the Bill. The Solicitor-General referred to two differences between the Bill and the Law Reform Committee's Reports. We must remember that the Committee suggested that the rules should be included, and I note with concern the rejection of its proposal that the rules should be set out in a Schedule. I appreciate that this would be a considerable task. Nevertheless, it could have been done in the case of the rules for the High Court. At some stage these rules will be brought before the House of Commons and no doubt we will wish to debate them. Would it not have been better to include the rules in the Bill so that we could see exactly what powers we are giving and what rules are to be laid down?
I hope that it is not in any distrust of Parliament that these rules are not in the Bill. I invite the Solicitor-General to consider, during the passage of the Bill, tabling an Amendment which would set out exactly what rules of court are proposed. I am glad to say goodbye to Hollington v. Hewthorn. I read the remarks of a noble Lord in another place who was a counsel in the case, and I am glad that the matter should have gone.
Can we be told at a later stage—as I pointed out, I do not expect answers to these questions today—whether conviction is to be conclusive? Would not such a course save considerable time and expense? Clause 11(2)(a) is to be welcomed in regard to defamation. It is an excellent revision and I am glad that no effect is to be given to an acquittal. I agree with what the hon. and learned Gentleman said about this matter.
I am not so sure about Clause 12, because it refers to a man being found guilty of adultery in a matrimonial proceeding. At this moment some of our colleagues down the corridor are removing from the divorce law the matter of guilt in matrimonial proceedings. We may have to think about that; it depends which wins the race—the Divorce Law 438 Reform Bill or the Civil Evidence Bill. I think that we shall win the race, because there will not be quite so much controversy as there is at the end of the corridor.
The Law Reform Committee was absolutely correct with regard to privilege. We must limit and control the extent of privilege. Although it is a matter of needing a balanced decision, the privilege of the Crown is now being reduced. I hope that at a later stage in the consideration of the Race Relations Bill the extent of privilege will be reduced with regard to complaints. The Law Reform Committee was quite right not to extend privilege—to maintain it as it is and not to give privilege to persons who should not have it. My points have been a hotchpotch, but it is impossible to avoid this in a Bill dealing with such matters as these.
We have had a careful and clear explanation from the Solicitor-General with regard to the language of the Bill, but to our unfortunate colleagues who are not technicians the language will be complex. It is a complex subject, but is it not possible to put the Bill into more comprehensible language? In the carefree days when the Solicitor-General sat on this side of the Committee and the House, I remember that the world was going to be set to rights in the near future, and that all would be work and honey and violets. There was great talk then about law reform, the new drafting of Bills and the recruitment of more Parliamentary draftsmen. We all know that Parliamentary draftsmen are born and not made. It is a tremendously difficult task, and I appreciate that the more complex the subject the more difficult it is to draft a Bill extremely clearly.
The Bill is a difficult one. It will be important to many practitioners, quite apart from the customers at the receiving end. I appreciate the enormous amount of work that has been done in another place. I should like to extend my thanks, through you, Mr. Yates, to the Solicitor-General and the Attorney-General for the assistance that has been given to me by the Lord Chancellor's staff. Undoubtedly great improvements have been made in the Bill through the movement of various Amendments by a noble and young Member of the House of Lords, who, as a hereditary peer, may not be there, when 439 the House is reformed. In dealing with the Bill in Committee we shall be greatly assisted by what has hitherto been done.
I welcome the Bill. It will be a considerable improvement on the present position. I am therefore very glad that it has been brought forward as the fruit of the labours of the Law Reform Committee. I commend the Bill to the Committee.
§ 11.18 a.m.
§ Mr. Roy Roebuck (Harrow, East)
I want to refer to the extraordinary suggestion made by the right hon. and learned Gentleman that the sittings of the Committee ought to be altered to suit the convenience of practising lawyers. That is a suggestion of the most appalling impudence. I do not believe that when persons become hon. Members of the House they should give up their profession or trade activities, but surely their duties as Members of Parliament must be paramount. The right hon. and learned Gentleman ought to reconsider very carefully his suggestion that the convenience of hon. Members' non-Parliamentary work should come first. He has, perhaps unwittingly, given a misleading impression.
I do not believe that the law should necessarily be made by lawyers. Many difficulties in the courts arise precisely because the law has been made by lawyers. The right hon. and learned Gentleman touched on this subject when he referred to the language in which some of our laws are written. I should like the Department of Parliamentary Counsel to recruit a complement of subeditors from Fleet Street, in order to simplify the language in which many Bills, perhaps including this one, are written.
I welcome Clause 11. After the speech of the right hon. and learned Gentleman one feels, as a layman, that one has no right to be here, but in recent years, in my simple layman's way I have observed a number of cases in which there has been a great deal of confusion. A bank sought to freeze the deposits of a customer because he had been convicted of stealing money from the bank. In order to do that the bank had to go through a lengthy and expensive procedure in order to prove all over again 440 that the man had taken money which did not belong to him. Newspapers have recently been involved in a number of cases in which they have described a man as a robber because he has been convicted, and when that person has taken umbrage and started a lengthy and expensive court procedure. The Bill rationalises and simplifies the law, and I wish it a speedy passage.
§ 11.21 a.m.
§ Mr. Ian Percival (Southport)
I have four points to make. It is extraordinary how some of our colleagues are capable of misunderstanding the quite civil and practical suggestion from my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson). If the hon. Member for Harrow, East (Mr. Roebuck) had made some contribution on the technicalities of the matter there might be something in the first point that he made. Most of what the Bill deals with is concerned with what happens in court during the hearing of a case. It is difficult enough for one who spends most of his days doing it, and, therefore, the people who are in the best position by their experience to comment on it are the people on both sides of the House who spend a lot of their time in courts. The more time a person spends doing this kind of law, the more helpful and useful his observations will be to us in Committee.
As I understand my right hon. and learned Friend's suggestion, it is not a question of priorities, but a suggestion that ex-hypothesi, if consideration of a Bill such as this can, without undue inconvenience to the Committee, be fixed for a time like 4.30 p.m., we may have the benefit of the views of the people from both sides of the Committee who have to put this sort of thing into effect.
§ Mr. Roebuck
The point that I was making is that at 4.30 p.m. I and other hon. Members might like to be in the Chamber, where we do not often see the hon. Gentleman's learned colleagues. If members of the legal profession who are Members of the House feel so passionately about the state of the law they should abandon some of their fat fees and come here to assist us in our deliberations.
§ Mr. Percival
I am sorry that the hon. Gentleman has introduced these emotive terms. That is the sort of outburst——
§ Mr. Percival
Whatever the hon. Gentleman calls it, it is the sort of thing that does not help. If practising lawyers were to abandon their practices they, too, would not be in a position to express opinions about matters of this sort.
§ The Chairman
This issue is not before the Committee. This is the Second Reading of the Bill. The question of meetings is one which is to be determined by Committees. I know that the question has been raised, but it would be better not to pursue it further.
§ Mr. Percival
It was not my intention to pursue it very far, Mr. Yates. I had really finished. But when what one is suggesting in a helpful spirit is met with what I call an outburst, and is described as stuff and nonsense, the temptation to meet these wholly unwarranted criticisms is almost irresistible. I am quite sure that what my right hon. and learned Friend and I have said was offered in a spirit of helpfulness, merely expressing the hope that on future occasions, when there is a highly technical Bill like this, a practice adopted in the past by both sides may be followed, of seeing whether it is convenient to the Committee, as selected, to meet at a different time.
I agree with the Solicitor-General that the difficulty about the commuter—I mean computer—provisions is that two technical sides are involved, the legal technicalities and the computer technicalities. I hope at some time that we may hear what expert advice on the technical side has been obtained, and what view is taken of it.
A very good paper has been produced on this problem in a non-contentious spirit by the Society of Conservative Lawyers, after consultation with those engaged in the manufacture and design of computers. There is a very lively legal department of International Computers and Tabulators, with at least two members very interested in the combination of technicalities.
It might assist us in dealing with the Clause in Committee to know a little more about the other technicalities involved. For instance, how is anybody to know whether the machine was working properly all the time? If I am repre- 442 senting the defendant and the plaintiff wants to produce a print-out from a computer, what happens? Must the plaintiff file a certificate saying that the three provisions of Clause 5 are satisfied, or am I to have the right to send someone along to look at the computer to discover for myself whether it was working properly all the time? I would like to hear a little more about considerations of this sort before we part with the Clause in Committee.
I support what my right hon. and learned Friend said about the rules. The rules have to be drawn up at some time. Why cannot they be drawn up and added to the Bill in Committee, as a Schedule? Then we can consider them and express our views. What is lost by doing that? It merely means that someone has to do it a little sooner than he otherwise would. Surely that is a very small price to pay for giving Members an opportunity to look at the rules and express their views. At the end of the day the Government may say, "Those are the rules, and if you feel strongly enough about it you can have a debate on them, but we will vote for those rules." If that is done we shall have been allowed to perform our function of expresing a view about them, and there can then be no question afterwards of their having been vetoed by an individual Minister.
If we take exception to that and the Government use their majority, as they are quite entitled to do, to say, "You are wrong, and those are the rules," then the thing has been done constitutionally, and there can be no possible complaint afterwards. I earnestly ask the Solicitor-General to consider that. The rules have to be drawn up some time. What possible objection is there to drawing them up now, tabling an Amendment, and adding a Schedule consisting of those rules?
I am not sure whether the Bill contains power to amend the rules, but if the Solicitor-General fears that if that course were taken somebody might be committed too soon to rules which might in practice prove not to be right in every detail, the possibility could be covered by including—if it is not already included—power for the rules committee to amend the rules. But let us get the basic rules fixed where they ought to be fixed, in the House of Commons.
443 My last point is a considerable point of principle. I very much hope that the Government may have second thoughts about it. It concerns the second of the three points on which the Government have departed from the recommendations of the Law Reform Committee. I refer to the conclusiveness of a conviction or an acquittal in the case of a libel action. The way in which the Solicitor-General put it to us, elegantly, in pleasant language, was almost convincing, because it makes it nice and neat and tidy if one is speaking from the point of view of authority or the Establishment.
It may be very convenient to have a situation in which, if a man is convicted, that is that; but if he is acquitted there is always the chance of saying that he has been lucky. That is upside down. I was brought up to believe that if a man was acquitted that was that; there could be no question of his leaving the court with some sort of grey shadow over his head, and that even though he might have been lucky, in the eyes of the law and the whole community he was regarded as innocent. If a man is convicted, in the criminal law that is conclusive—save that he has certain rights of appeal. However, if he can establish his innocence by other means, should he not have the right to do so? Is there anything worse than thinking that an innocent man has been convicted? I would like to think that a man finding himself in that situation would be given every opportunity to reverse the decision.
The Law Reform Committee recommended that both a conviction and an acquittal should be final. I can see an argument for that. There must be some end to litigation and the canvassing of an issue. It seems justifiable on that ground, if it applies to both situations. However, I still feel that in the event of a conviction no one should be deprived of an opportunity to establish that there was some doubt. I can see the argument, provided it applies both ways. I can see no argument—except administrative convenience—for making conviction conclusive and acquittal not conclusive. That is standing on our heads and reversing a number of principles which I thought were well established in our law. Certainly they are some of the most useful principles which the layman would wish to see observed.
444 There is a good deal of law which no layman can understand; indeed, many lawyers cannot understand it. But there are certain principles in which the layman is interested, and this is one of them. The principle in this case is applied the wrong way round. It is the voice of authority and administrative convenience speaking. We should not allow it to do so, and I hope that the Government will think again about it and at least go back to the recommendation that acquittal shall also be conclusive.
§ Mr. Roebuck
I am not insensitive to the hon. and learned Gentleman's point about a man having all sorts of opportunities to redeem a conviction, but can he cite an instance in which, by using these procedures in a libel action, a wrong has been rectified?
§ Mr. Percival
I have no doubt that all this springs from the case of Hinds. No doubt he was a shocking nuisance to a lot of people. Whether the Hinds decision resulted in the rectifying of an injustice I do not know.
§ Mr. Percival
No, but that is the only recent case which comes to my mind of anyone challenging a conviction through the laws of defamation. It did not lead to a pardon, but the jury in the defamation action came to the conclusion that the offence was not proven and awarded damages. He got to the stage of saying that another jury had heard the evidence and had taken a different view. He established in the minds of some that there was a doubt about his conviction.
If I had to single out one point it would be that an acquittal should be final. It sticks in my gullet that a conviction is to be final but an acquittal is not. It does not matter whether anyone thinks that an acquitted man has been lucky; if he walks out of a British court having been acquitted of an offence he must be regarded as innocent.
Like my right hon. and learned Friend, I do not expect any answers on these points. In fact, I would rather not have them. The opportunity of speaking in a Second Reading Committee is to give advance notice of points which one would like looked into further. I would rather 445 not have them answered now, because it is always the "No" answer which comes quickly. The "Yes" or "Perhaps" answer takes a little longer. I hope that it will be thought that there is some force in the points that I have put forward and that the Solicitor-General will later be in a position to make some concessions. With those comments, I, too, welcome the Bill.
§ Mr. Peter Archer
I did not want to interrupt the hon. and learned Gentleman's argument on more important points, but does he agree that his confusion between a computer and a commuter is understandable? The definition of both words is something which begins at one point and ultimately arrives at another, with ample opportunity for going wrong in the intervening journey.
§ 11.38 a.m.
§ Mr. Walter Clegg (North Fylde)
I rise to speak for two reasons. The first is one of sentiment, because I remember that you and I, Mr. Yates, served for three months on the Committee which considered the Criminal Justice Bill, and I wanted to say a few words, if only for old times' sake.
My second reason arises out of the intervention of the hon. Member for Harrow, East (Mr. Roebuck). I am quite used to hon. Members who are not lawyers saying rude things about us. It is part of the web of life here, and one gets used to it. However, at times hon. Members go too far. The hon. Gentleman went too far in talking about fat fees. The National Board for Prices and Incomes said recently that my branch of the profession should have a rise of 55 per cent. for our work in the county courts. In other words, rather than earning fat fees we are seriously underpaid.
I was a little alarmed to hear the Solicitor-General say that the Bill will simplify divorce procedure. It may in one respect. However, he said later that these are important and difficult aspects of the law of evidence, and we shall be dealing with them when we come to the question of divorce, because changes in the law of evidence will have a serious effect on the divorce aspects of our practices. We are pouring on to the heads 446 of lawyers a cataract of legislation which, if we understand it, makes our fees even better earned.
The hon. Member for Harrow, East talked of the complications of language and said that it would help if we had some Fleet Street editors to help the parliamentary draftsmen. The Parliamentary draftsmen are not the villains in this case. The politicians are the villains. It is they who say to the draftsmen, "Here is a situation. You put it into words." The Land Commission Bill is one of the best examples. It was a most complex Measure, and the draftsmen were given an impossible brief. I agree with my right hon. and learned Friend that they may be born and not made, and I suggest that it is time that they started reproducing at a faster rate.
To some extent I share the worry of my hon. and learned Friend the Member for Southport (Mr. Percival), about an acquittal not being final in the way a conviction is. I appreciate the reason advanced by the Law Reform Committee—that the standard of proof in a criminal court is different from that in a civil court, and that the two matters do not match up—but what gives me cause for concern is the possibility of someone going through a trial lasting three or four weeks, being acquitted, and then being faced with the strain of civil proceedings of an equal length, let alone the burden of costs which he may face.
I have in mind a case which might arise where a man is acquitted of a murder charge and then attempts to prove the will of the dead person. There could be a trial in the Probate Division, which substantially would be a second murder trial. After the verdict of the jury the judge in the Probate Court would have to decide, on the balance of probability, whether the acquitted man had killed the person concerned, because obviously that would have a bearing on whether he could benefit under the will.
That is not too fanciful; my own firm was involved in a case some years ago where there had been a prosecution for murder and where, after the jury disagreed, the Attorney-General entered a nolle prosequi. Just such a situation then arose in the Probate Court. The action was later settled, but on that occasion we were faced with a second murder trial. I would have thought that it might 447 be possible to amend the Bill so that an acquittal under certain circumstances—possibly certified by the judge—could be treated in the same way as a conviction. It is a difficult technical point, but it is worth considering in Committee.
I echo what my right hon. and learned Friend said about the noble Lord, Viscount Colville of Culross, and the efforts that he has put into the Bill. It would be a great tragedy if the services of young men such as he were wasted.
Then there is the point which my hon. and learned Friend the Member for Southport made about the rules of court. It may be that this House should look at them and, if necessary, amend them. When they come before the House on a Prayer it is impossible to amend the Prayer.
Finally, I express my deep disappointment at the Solicitor-General's speech. I had expected that in relation to the Schedule of Consequential Amendments he would point out the significance of the Hop (Prevention of Frauds) Act, 1866.
§ 11.45 a.m.
§ The Solicitor-General
I have listened with the greatest care and interest to the points that have been made. I think that it is generally agreed that most of them can be usefully considered in Committee. But for one circumstance I would gladly have fallen in with the agreeable and possibly unprecedented suggestion of the hon. and learned Member for Southport (Mr. Percival) that a reply of any kind, on the whole, was not to be desired. Even applying the standards of judgment on the points which the hon. and learned Gentleman adumbrated I thought it right to indicate my view upon the treatment of the rules of court, because it may be useful in considering how best to develop matters in Committee.
It is true—it was useful of the hon. and learned Gentleman to draw our attention to it—that the Law Reform Committee, in its Thirteenth Report, spelt out the proposition in paragraph 46:It would, we think, be a convenient course to incorporate the initial rules of court for the High Court and county courts in schedules to the statute, as was done with the original Rules of the Supreme Court in the Judicature Act 1873. The rules so scheduled would be cap- 448 able of amendment from time to time by the appropriate rule-making authority, in the light of experience of their operation.That is in the body of the Committee's Report. Although it uses the expression,It would, we think, be a convenient course",it is true, and it should be recognised, that in Recommendation (19) it spells that out:The initial rules of court, both for the High Court and county courts, should be scheduled to the amended Evidence Act but made capable of being amended by the rule-making authority.What strikes me on this rather important point—and this is what I should like the hon. and learned Gentleman and hon. Members to consider—is that it would be of doubtful use to schedule Supreme Court rules only, when the Bill also applies to county courts and magistrates' courts. If the Bill were to contain, in Schedules, rules to cover all these jurisdictions it might be thought to be a large and unwieldy Bill. I put that point forward for consideration, because that is how my mind reacts to the proposals.
I suggest that there is a little more to it than that, because these rules—and this Bill will apply to the rules of the High Court, county courts and magistrates' courts—will in many instances have to be fitted in with, and grafted upon, the existing fabric of rules for each court. That would be a difficult drafting exercise, and might involve a complexity of cross-reference that it would be desirable to avoid. These are my reflections upon the recommendation that has been made in the debate, but we can give further thought to that subject in Committee.
In conclusion, I am grateful for the welcome which has, by and large, been afforded to the Bill by the Committee.
§ Mr. Roebuck
I wonder whether my right hon. Friend could deal with the point raised by the hon. and learned Member for Southport (Mr. Percival) about a convicted person having another bite at the cherry? This is a matter of considerable importance. The hon. and learned Gentleman raised the case of Mr. Hinds. I do not think that the Committee has heard the full story about that case, because it would seem——
§ Mr. Roebuck
May I ask for some clarification? It appears to me that all 449 one has to do under the existing law is to get some helpful newspaper to libel one, and then one can have another trial.
§ The Solicitor-General
I take note of what my hon. Friend has said on this point. I do not think that it is desirable that I should add to what I have already said on the point in my initial observations. However, my hon. Friend will appreciate that we will have later opportunities to consider this in Committee.
§ Question put and agreed to.
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Yates, Mr. Victor (Chairman)||McCann, Mr.|
|Archer, Mr.||Owen, Mr. Will|
|Atkins, Mr. Ronald||Percival, Mr.|
|Boardman, Mr. Tom||Perry, Mr. George H.|
|Clegg, Mr.||Rawlinson, Sir P.|
|Forrester, Mr.||Roebuck, Mr.|
|Grant, Mr.||Solicitor-General, Mr.|
§ now have the opportunity of thanking you for your great, though not unexpected or surprising, skill and ability in the conduct of the proceedings of this Committee.
§ Mr. Rawlinson
May I, for the second time in a few weeks, Mr. Yates, second the Motion moved by the Solicitor-General. I would merely add that you are going to know more about the law than any lawyer in a very short time.
§ The Chairman
Thank you very much. As a layman who has been present on a number of occasions when lawyers have been considering questions, I found this morning a great exercise in patience. I am obliged to right hon. and hon. Members for their co-operation.
§ Committee rose at eight minutes to Twelve o'clock.