Clause 1

HC Deb 28 April 1972 vol 835 cc1965-71

APPLICATION OF PART 1 OF CIVIL EVIDENCE ACT 1968 TO STATEMENTS OF OPINION

Question proposed, That the Clause stand part of the Bill.

1.15 p.m.

Mr. Martin McLaren (Bristol, North-West)

The Clause provides that statements of opinion made out of court shall be admissible in evidence in the same way as out-of-court statements of fact were made admissible by the Civil Evidence Act, 1968.

We are here mainly concerned with experts' reports. Where the order for directions in an action—that is the procedural stage—provides for expert evidence to be given, the effect of the Clause would be that a party should be able to give notice on disclosing the experts' report to the other party that he intends to rely on the report as evidence at the hearing, and if no counter-notice is served the maker of the report would not need to be called as a witness, with consequential saving of expense and professional time.

The Clause also applies to non-experts' opinions. In traffic cases, for instance, it is common for a witness to say "There was nothing the driver could do to avoid the accident", or "It was entirely the child's own fault". Hitherto, such statements have been strictly inadmissible because the maker of the statement was giving not evidence of fact but evidence of his opinion. It was often opinion, and also opinion bearing closely on the facts on which the court had to decide whose was the fault in the accident. But we have recognised that in telling his story naturally, the maker of the statement is bound to use such expressions.

Subsection (2) relates to recording expressions of opinion if the record was made by a person acting under duty from information supplied by a person with personal knowledge of the facts stated.

Mr. Ivor Stanbrook (Orpington)

I speak as one who has grave reservations about the merits of the Bill and, indeed suspicions about its motives. By way of parenthesis, perhaps I may ask my hon Friend whether he intends that in future "hearsay" should be spelled "heresay". The word has a different spelling in the" Explanatory Memorandum from that in the Bill.

Mr. McLaren

For that error I apologise.

Mr. Stanbrook

I am gratified to know that we are not to alter the spelling of that ancient and honourable—or, perhaps sometimes dishonourable—word.

I believe that by the Clause we are getting on rather dangerous ground Evidence of fact as presented by hearsay evidence has been legal since the Civil Evidence Act, 1968, but the transition to admitting hearsay evidence where it is of opinion is very big, and something that we should not allow without the greatest possible consideration of its consequence and effects. It seems to me that the effect in courts in future will be for the calling of expert witnesses, all giving their opinions of the matter in issue.

As my hon. Friend has said, in court nowadays one very often gets someone wishing to say that something was not the child's fault. I question whether nowadays it does any harm when that is said and whether the strict rule that one canot give evidence in that form hampers the ascertainment of the truth in any matter.

The point to bear in mind is that evidence of this kind goes directly to the issue which the court has to decide, and one must question whether this is usurping the function in these cases of the court, tribunal or jury in the task of ascertaining the truth. I therefore seriously question whether this House really knows what it is about in agreeing to the admission of opinion evidence where formerly opinion and hearsay evidence has been restricted to matters of fact.

After all, the court is about the ascertainment of the truth, and the truth is the facts. Facts are many-sided. We face this difficulty in many walks of life. Courts are established to ascertain the truth in any particular dispute. However, opinion is as many-sided as there are as many experts qualified to give it.

I feel, therefore, that we are on an entirely different plane in this provision in suggesting that in future hearsay evidence of opinion can play any significant part in our judicial processes. I deplore the introduction of this new feature into our law and would oppose it.

The Solicitor-General (Sir Geoffrey Howe)

I take this opportunity to reassure my hon. Friend the Member for Orpington (Mr. Stanbrook) that some of his alarm is without a great deal of justification.

First, however, I wish to congratulate my hon. Friend the Member for Bristol, North-West (Mr. McLaren) and extend to him the thanks of the Committee for the wisdom which has prompted him to introduce the Bill. This Measure is founded fairly and squarely on the recommendations of the Law Reform Committee. It is therefore, appropriate that I should extend to that Committee as well the thanks of hon. Members for the work it has done on this report as well as on its earlier reports.

The Bill embodies the conclusions contained in the Law Reform Committee's Fourth Report, the fourth of four resulting from the reference to that Committee by my noble Friend Lord Dilhorne in September, 1964, of the question of the law relating to civil evidence.

The Law Reform Committee's first three reports were embodied in the Civil Evidence Act, 1968. It would be be doing an injustice to the quality of that Act to say that it brought a revolutionary transformation over the way in which our courts conduct their business. There are many people who might take the view that the rules of evidence are of more relevance to the weight of evidence in civil proceedings without a jury than to admissibility—when one remembers that matters are being considered by experienced trial judges with knowledge of the kind of objects which the rules of evidence are designed to achieve—but that is a general matter to which I shall return later in our proceedings.

I remind my hon. Friend the Member for Orpington that the Law Reform Committee comprises 15 legal luminaries of great distinction, none of them by temperament prone to recommend the kind of dangerous or alarming measures which might arouse suspicion on the scale he indicated.

The recommendations contained in Clause 1 were unanimous recommendations of the Law Reform Committee. To allay any alarm, I might mention that the provisions which arise from the 1968 Act and the rules made under it will still apply under Clause 1 of this Bill, whereby a party intending to tender in evidence a hearsay document containing an expression of opinion will be obliged to give notice of that intention to the other party, and the other party can, by serving a counter-notice, require the attendance of the witness whose evidence would otherwise be admitted by means of hearsay.

It is clear, therefore, that the revolution, if revolution it be, is modest. Any party who feels himself adversely affected can always take steps to prevent what my hon. Friend the Member for Orpington fears, and, on that basis, I recommend the Clause to the Committee.

Mr. S. C. Silkin (Dulwich)

I echo what the Solicitor-General said by way of congratulation and thanks both to his hon. Friend the Member for Bristol, North-West (Mr. McLaren) and to the distinguished members of the Law Reform Committee, whose last report is the basis of this Bill.

Perhaps the hon. Member for Orpington (Mr. Stanbrook) was not being entirely fair to Parliament in suggesting that Parliament did not quite know what it was doing. Those of us who have read the report produced by these distinguished gentlemen can hardly fail to be aware of what we are doing because the report puts it so clearly and lucidly.

I echo also the views expressed by the Solicitor-General on this matter. Like him, I would widen rather than narrow the field of the admissibility of evidence, and I would prefer, like him, that matters such as the question of hearsay should go to weight rather than to admissibility. The hon. and learned Gentleman indicated his intention to return to this subject later, and I will follow his example.

I question the use of the terms "qualified" and "expert evidence" in the Bill. I can find no definition of them in the Measure, although I may have overlooked some reference to them. The report deals with these matters in the paragraphs following paragraph 19. The conclusion I draw from those paragraphs is that the Law Reform Committee had in mind that these should not be terms of art, that a person should be regarded as qualified whom the court considers to be qualified. There seems to be no magic in the term "expert evidence". It is simply evidence related to the technicalities of a subject in which people may have more or less learning.

If so, I can find no place in the Bill which states that it is for the court always to decide whether evidence is expert and whether a person is or is not qualified to give expert evidence. I trust that I shall be corrected if I am wrong. It would be a useful piece of information to have.

1.30 p.m.

Mr. McLaren

I endorse what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) has said, that it would normally be for the court at the beginning to review the qualifications of the person putting himself forward to give expert evidence, and it would be for the court to consider whether, by his experience of and study in a specialised subject matter, such a person was to be trusted in giving to the court specialised evidence of that sort. I am grateful to the hon. and learned Gentleman for raising that point. Those concerned with the Bill in another place may well think fit to add a helpful definition.

I ask my hon. Friend the Member for Orpington (Mr. Stanbrook) to consider that the strict rules of evidence in English law date from the days when normally all cases were tried before juries, and relatively ill-educated and ill-experienced juries at that. The policy of the law was that such juries might easily be led astray by evidence at second hand, as hearsay evidence is. In these days when trial by jury in civil cases has practically disappeared, is it seriously to be argued that learned judges will be led astray by written reports that they may read?

Mr. Stanbrook

The danger about hearsay evidence is not that of misleading the tribunal, whether it be a judge or a jury. It is that hearsay evidence may be fabricated evidence, just as misleading possibly in either case. That is the danger we must seek to guard against.

Mr. McLaren

I should have thought that judges would be well able to look after that and keep a sharp eye on the value of the evidence before them. Nor is it seriously to be supposed that if a lay witness gives his evidence from opinion in an accident case by saying that he thinks it was all the fault of one side the judge will necessarily allow himself to be swayed by that evidence. It will merely be a case of the witness trying to convey to the judge what he saw and thought.

The Solicitor-General

Paragraph 19 of the report is indeed the reference, as mentioned by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). As I understand it, the first sentence sets out the state of the common law now:

It is also for the judge to determine whether the expert whose testimony is sought to be adduced possesses the knowledge or experience needed to make his evidence of assistance in enabling the judge to form a correct opinion on the matter in issue. In other words, it is for the judge to determine whether the expert is suitably qualified to give evidence in the case before him.

The Bill, certainly Clause 1, does nothing to disturb that position, save in Clause 4, which varies what may be a former rule limiting the qualifications of an expert on foreign law, basically to bring it into line with what applies in the rest of the law. What is there set out, a person who is suitably qualified to do so on account of his knowledge or experience is merely a statement of the generality of the law about the qualifications of experts. I hope that that answers the point.

Question put and agreed.

Clause 1 ordered to stand part of the Bill.