COMPENSATION FOR DAMAGE CAUSED BY OFFENCE (Hansard, 15 November 1968)

§ Mr. Stodart
I beg to move Amendment No. 9, in page 11, line 32, to leave out from 'compensation' to 'and' in line 39.
This is another legal matter, and it is one of some substance. The Clause deals with the question of civil claims arising out of the committing of any of the statutory offences mentioned. The individual right to proceed by ordinary action is preserved by subsection (4). The first two lines of subsection (2)(c) are entirely unobjectionable. There is nothing to which I take exception in that. But what follows allows a report, un-sworn and uncorroborated, to be regarded not only as evidence but as conclusive evidence of the loss sustained—subject, of course, to the direction of the sheriff.
It is not accurate to say that there are no occasions on which reports of this kind are admissible as evidence, but it is true that the circumstances are very peculiar when there are. Certainly, affidavits, which are sworn statements, have been admissible in place of oral evidence as proof of damages in collisions at sea and generally in Admiralty and commercial cases.
817 I refer the hon. Gentleman to the rules of the Court of Session. Paragraph 152 says: In any admiralty or commercial cause the Court may accept as evidence affidavits. Where, in the opinion of the Court, any affidavit produced is insufficient to enable the question at issue to be disposed of, the party lodging the same may be called upon to lodge a supplementary affidavit, or, where the circumstances reasonably permit, to prove the relevant facts by the ordinary rules of evidence. Paragraph 135 defines what is an Admiralty cause. It lists 16 of them. None is anything like what is specified in this Clause or arises from what we are discussing.
The proposal in the Clause which we wish to omit goes very much further than this by substituting a mere report by someone for a sworn affidavit. When the Scottish Standing Committee discussed Section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968, we learned that it did away with the need for corroboration in actions for damages for personal injuries. I draw the hon. Gentleman's attention to the fact that this Clause deals not only with personal injuries, however, but includes damage to property as well.
Our concern is that one cannot cross-examine over an affidavit or a report. There are already sound reasons for admitting the affidavit in special circumstances, but none for going further than that. The Clause as drafted breaks new ground in relation to corroboration of evidence, and I hope that the hon. Gentleman will be able to assure us either that the Government accept the Amendment or that they will give serious reconsideration to this aspect.

§ Mr. Buchan
I understand the difficulty and appreciate why the hon. Gentleman has moved this Amendment. I draw his attention to Clause 11, which says: In any civil or criminal proceedings a written statement purporting to be a report made by a British or foreign sea-fishery officer on matters ascertained in the course of exercising his powers under section 9 above for the purposes of enforcing the provisions of any convention mentioned in that section shall be admissible as evidence to the like extent as oral evidence to the like effect by that officer. No objection has been taken to that provision.
818 But, apart from the importance of Clause 11, there is the question of cross-examination. I want to look for a moment at the general argument. The hon. Gentleman suggests that a report of this nature will be conclusive evidence. It will be nothing of the sort. We are simply saying that such a report may be considered as evidence. The Clause allows its admissibility. It is not in itself sufficient to prove a case, since that is a matter for the sheriff to decide. The Clause merely states that the report may be admissible and may be sufficient if the court decides so. That is quite different from saying that the report "shall" be conclusive.
The court need not accept the evidence of the report. On the other hand, the report may be sufficient if the court believes it. The circumstances in which the report was produced and the report itself will be a matter for the court to adjudicate upon in deciding whether to accept it.
There are certain difficulties in this sort of situation. Such a report will be useful, for example, where there are difficulties in securing the attendance of sea-going witnesses, particularly in foreign boats. In some cases the record kept by the sea-fishery officer concerned may be the only impartial record available to the court. We are merely saying that justice will be served by allowing the admissibility of these reports but their acceptance is a matter for the courts. That is sufficient for our purpose. It will, of course, still be open to the courts to require additional evidence. This Clause does not impair the court's rights in that respect at all.
Finally, there is the question of compensation. It is considered that the provision will be of assistance to persons who have suffered damage at sea rather than that it is the gross invasion of the rights of the individual that the hon. Gentleman sees. I note the connection with recent legal discussion in Scotland and with the arguments which took place in another place. But the distinction the hon. Gentleman made in relation to personal injuries is not really applicable here. The two cases are not directly comparable, although the principle is the same in that a particular kind of evidence may be admissible, but may not be of itself conclusive.

§ Mr. Stodart
I am not a lawyer. Nor is the hon. Gentleman, although he is backed up by formidable advisers. I do not think that he has made out a case for departing from the rule which relates affidavits very closely to Admiralty causes, and what we are discussing seems to me to have a certain amount of affinity to the Admiralty. The circumstances have to do with ships. The Admiralty Causes List links itself closely with affidavits. The List does not allow reports. In several items mentioned in paragraph 135 of the List, a report is not acceptable, but an affidavit is. In Clause 13, however, the Government are saying that there is something so special, unique and difficult that an affidavit is too much and that a report will do.
I would be perfectly satisfied if the hon. Gentleman agreed to alter the word "report" to "affidavit", but otherwise he seems to be breaking considerable new ground. On the Law Reform Bill we were told that the new law on corroboration was to affect only personal injuries and not damage to property, which is what is here involved. I daresay that I overstated my case by suggesting that this would be conclusive evidence, but nevertheless the word is "shall" and not "may" and the phrase is: shall…be sufficient evidence for the disposal of the question of compensation. I suppose that we may argue about what is sufficient, but if the court thinks that it is sufficient, that will be that.
2.0 p.m.
Although I may take credit for spotting this myself, let me not lead anyone to suppose that I did not consult my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), who has been of use to both sides of the Scottish Grand Committee and the House in his time. He assured me that he thought that this was a step which should be examined very carefully. I therefore hope that the hon. Gentleman will be willing to say at least that he will consider the use of the word "affidavit" before the Bill goes to another place.

§ Mr. Buchan
I understand the hon. Gentleman's argument about the use of "affidavit" and I am prepared to consider that matter to see whether there is any substance in what he says. I am 820 not convinced by what he has said about the use of "shall".
Although he says that this is a new provision, it is a continuation of and corresponds to the provisions of Section 8 of the Sea Fisheries (Scotland) Amendment Act, 1885, so that no new ground is being covered, and that should be remembered when we are considering the precedents.
I should like to consider the hon. Gentleman's interpretation of the phrase "shall be sufficient evidence". The exact words are: shall, unless the sheriff considers that it is necessary in the interests of justice to allow additional evidence, be sufficient evidence… That is a very big difference. The second qualification is that it is to be sufficient evidence for the disposal of the question of compensation, which does not mean that it is to be taken as proof.
With those two important points, the qualification of the hon. Gentleman's interpretation of "shall" and the reminder that this is not as new as the hon. Gentleman suggests, I should like to consider the somewhat technical point about an affidavit, although I shall do so in as sour and discouraging a manner as possible.

§ Mr. Stodart
That spoils the whole thing. However, as the hon. Gentleman has said that he will look at the matter again, whatever expression he wears on his face, I beg to ask leave to withdraw the Amendment.