Mr. Deputy Speaker
With this we can also discuss Amendment No. 9, in page 4. line 4, leave out from first of ' to that in line 6 and insert:another person shall be admissible as evidence tending to establish any fact stated therein of which direct oral evidence by the maker of the statement would be admissible, if that other person gives evidence of the making of the statement and of the facts stated therein, in so far as he has any knowledge bearing upon those facts. and if the court is satisfied by evidence:
- (i) of the authenticity of the statement and
- (ii) that its admission as evidence would not create substantial injustice to any defendant; and
§ Mr. Archer
In the last debate my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) welcomed the partial conversion of the Government, at least before he exposed the viper in the bouquet. On this subject there is no joy in heaven at all. Clause 5 simply adds a further weapon to the authorities armoury or, as we would prefer to put it, it removes a further defence for the innocent. It proposes to admit evidence contained in statements in certain cases without calling the person who made the statement, without the court having the advantage of seeing the deponent, without the formalities of an oath and, perhaps most important, without the safeguard of cross-examination.
It lends itself, as the hon. and gallant Member for Down, South (Capt. Orr) reminded us in Committee on 11th June, to the danger of people paying off old scores, what the hon. and gallant Member called the "framing" operation. In Committee the hon. and gallant Member and the Opposition attempted to suggest methods of mitigating the apparent casualness of what is a serious inroad into the rules of evidence. The hon. and gallant Gentleman suggested that at least 806 the statement should not be admissible unless it was made in the presence of two constables. The Opposition suggested that it ought to be made in the presence of a magistrate.
To ask whether we might have been content to accept Clause 5 had the Government made any concession on the point is a hypothetical question with which I will not detain the House. We regard this proposal as dangerous and potentially responsible for many wrongful convictions. The Solicitor-General argued that it did not matter, that even if we admitted the statements the court might not give great weight to them. His argument was "All right, let us admit them but let us not pay too much attention to them". That is a solution which does not commend itself to the Opposition.
Juries sometimes have to be directed "You have heard something which you ought not to have heard. Put it out of your minds. The law would have excluded it because it is more likely to be prejudicial than helpful, so forget it." We all know how difficult it is for any jury to exclude it. Judges are not somehow psychologically above the same kind of pressures which exist for the ordinary man. Judges too, if they have heard something which it would have been better not to have heard because it is prejudicial, might on occasions find great difficulty in making up their minds what conclusion they would have reached if they had not heard it.
It is easy for us to be impressed by something which cold reason tells us would have been better unheard in the first place. The argument of the Solicitor-General is really an argument for having no rules of evidence at all. What he is in effect saying is that we can safely leave all of these matters to the common sense of the court. It may well be that there will not be many situations in which these powers will arise. The right hon. and learned Gentleman argues in any case that in the majority of cases where they do arise the court will not attach great weight to them. My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) pointed out in Committee that probably the majority of statements of this kind are taken in the police station in situations where at least the proper formalities can be observed.
807 If the Government were minded to introduce another clause providing for the admission of statements with rather different formalities we might take a different view. However, we regard this as a matter not to be taken lightly. It is easy, once one has swallowed the original erosion of the jury system, for the whole thing to escalate. These other erosions can be treated all too lightly.
Turning now to Amendment No. 9, the Opposition are here seeking to point out that the Government cannot have it both ways. If this suspect evidence is admitted, it must be admitted for the benefit of the prosecution or of the defence. There is an old proverb "What is sauce for the goose …." In the Bill the Government speak of a statement being taken in the presence of a constable. That rather gives away their thinking. Clearly, they have it in mind that it will be of advantage to the prosecution and that it never could arise for the benefit of the defence.
We ask the House to accept Amendment No. 7, eliminating this kind of evidence altogether. But, if not, we say that it is quite wrong that it should be used only to obtain more convictions. The very fact that the Government have drafted the clause in this way, with the requirement that it should be in the present of a constable, gives away the real purpose of the Bill, which is, clearly, to obtain more convictions. We say that in a proper case if this kind of evidence is to be admitted it should make it possible to secure an acquittal.
§ The Solicitor-General
The reasoning behind the clause was clearly set out in the Diplock Report, in Chapter 8. To summarise that, the hard reality of life is that witnesses in Northern Ireland are likely to be got at once it is known they are likely to make a statement to the police or have made one, with the object of ensuring that they do not give evidence in court. Under the law as it stands, if a witness fails to give evidence in court that is the end of the matter and the formal statement is not admissible.
There have been cases in Northern Ireland of witnesses having made statements and subsequently refusing to testify in court. Intimidation has ranged from the moderate to the serious—from stones thrown through windows to wounding 808 and even, in one case, to murder. It does not seem unreasonable in such cases that, where a witness disappears, goes abroad or is unfit to attend, his formal statement to the police should be admissible. It is worth remembering and emphasising that the absence of that witness and the fact that his statement goes in and he is not there to be cross-examined is something which clearly goes to the evidential value of that statement when the court has to consider it.
On Amendment No. 9, in spite of what the hon. and learned Gentleman said, it is not clear to me why this new restriction should be placed upon statements made in this way. Statements made to the police are made by persons who know, or should know, at the time of making them that they are likely to be called upon to swear them on oath. The actual making of the statement in those circumstances is a serious matter. A statement made to the police is more likely to be taken as a serious matter than is a statement made to another person.
With the greatest respect to the hon. and learned Gentleman, the provisos in the amendment do not amount to much. Under Clause 5 as it stands it is already necessary for the police to give evidence of the taking of the statement and any relevant facts that may explain the absence of the maker of the statement. The authenticity of the statement will in any event be considered by the court. That is a matter which has to be considered in every case whether a witness gives evidence or makes a statement.
A great deal of time was taken in Committee in considering the position of a mentally unfit person. The date upon which a witness suffered mental unfitness would be of great importance to the court in deciding how much weight to attach to the statement. Evidence is evidence. It is neither just nor unjust. The justice comes when the court decides on the evidence whether to accept it and how much of it to accept, and what will follow from its acceptance of it in part or in whole.
§ Mr. S. C. Silkin
We are not satisfied with that reply. Like my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer), I take the view, which I think is generally held, 809 that one should accept the dilution of the normal rules of evidence only in the last resort. I have no doubt that even those who will have to give effect to Clause 5—the judges in Northern Ireland—will not welcome this provision.
In the first part of his reply the Solicitor-General put forward a case for the clause, a case which was referred to by the Diplock Committee and one which we have always thought was the only basis upon which a clause of this type could validly be inserted into the criminal law—that is, the case where a witness who could give valuable testimony positively refused to do so because he was frightened. That is the one case that is not provided for by the clause, unless that witness is so frightened that he leaves the country or hides himself away where he cannot be found. If he simply remains, doing his job, living in his house and positively refusing to give evidence, I suppose he can be forced to do so against his will, with all the dangers that would involve, but it is difficult to believe that that course would often be taken. The one basis upon which the clause could be justified is not provided for.
I hope that between now and the next stage of the Bill in another place the Solicitor-General will give serious consideration to the argument put forward by my hon. and learned Friend on the word "constable". The Solicitor-General did not deal with that argument and, with great respect to him, I wonder whether he entirely followed it.
The argument is that if, for example, the solicitor for the defendant sees someone who, he has been told, will give evidence which might be helpful to his client in relation to the offence charged, it is just as likely that a person whose statement has been made to the defendant's solicitor—or perhaps to some other person—will succumb to one of the three qualifications set out as will someone who has given his statement to a constable either on the spot or in a police station. Even looked at from the point of view of the prosecution, a statement may be taken by someone other than a constable. It is difficult to follow why there should be some magic about a statement made in the presence of a 810 constable which does not apply to a statement made in the presence of some other person provided that, as the amendment puts it—and the amendment is directed to the other person as much as to the constable—the authenticity of the statement is clearly proved. In the case I have put forward the defendant's solicitor would have to go into the witness box and state how and when the statement was taken, and also deal with the other matters.
Even if the Government are not able to go along with us in our dislike of this form of evidence—and I regard this almost as one of the major defects in this part of the Bill—I hope that they will reconsider the argument I have put forward in relation to persons other than constables and introduce later an amendment to deal with it, not necessarily in the precise words of Amendment No. 9.
§ Mr. McMaster
I am sorry that we are discussing this important amendment in such an empty House. It underlines the fact that Ulster is under-represented in this House. The fact that so few hon. Members representing Ulster constituencies are present means that the burdens upon them in a week like this prevent the case as seen through Northern Irish eyes being properly expounded and debated.
As hon. and learned Members have said, it is with regret that we face a situation in which we have to reduce the ordinary standards of the common law as applied throughout the United Kingdom. It is clear from the Diplock Report that the situation in Northern Ireland is different from that in the rest of the United Kingdom and requires extraordinary measures.
The measures in the Bill are temporary, and I hope that they will not be needed for more than the year for which the Bill is initially enacted. But the situation in Northern Ireland—and I speak as a representative of Northern Ireland from a constituency which is very much affected by these troubles—is such that it is impossible for the ordinary rules of evidence to be applied. It is very much a matter of fact that witnesses are got at. Witnesses are not only intimidated but are personally attacked. Indeed, in one case in my constituency a witness was killed in front of his wife and children.
811 In such a situation it is important that Clause 5 should form part of the Bill in order that justice may be done in Northern Ireland and that the public in Northern Ireland should be satisfied that all reasonable steps are being taken. This includes the use of extraordinary measures so that trouble should be brought to an end and convictions obtained against those whom everybody knows to be responsible. My use of the phrase "everybody knows" may be questioned, because there is a presumption by lawyers that people are innocent until they are proved guilty. But there have been many cases in Northern Ireland where the accused person has simply said openly "I do not recognise this court." He has turned his back on the judge, thereby admitting that he is a member of the Provisional IRA, because this is the standard tactic of its members. Yet because of the provision of our ordinary law it is impossible to obtain a conviction against that man.
One can imagine the outrage of the general public when such a person, against a background of crime and violence which has completely upset our society in Northern Ireland and led to untold misery and suffering, is seen to walk out of the court. One has only to imagine the reaction of ordinary people—police, soldiers and all the rest—in Northern Ireland who have risked their lives to apprehend the person concerned and to bring him to justice.
§ Mr. McNamara
To get the record straight, I am sure that the hon. Member for Belfast, East (Mr. McMaster) will accept that it is not only people who claim to be members of the IRA, whether of one wing or the other, who have refused to recognise the court's jurisdiction. There have been people in what I might call Unionist circles who also have refused to recognise the jurisdiction of the court. Does not the hon. Gentleman also accept that, whether a person is a member of one of the extreme Republican organisations or a member of one of the extreme Unionist organisations, if we have a system of law—whether it be what exists at the moment or something which will come about as a result of the Bill—it is nevertheless the duty of the prosecution to prove that a person is guilty and not to take it on the say-so of the phrase 812 "everyone knows" or "everyone suspects"?
I am sure that what the hon. Gentleman is seeking to defend, as are we on this side of the House, is the acceptability of what we would regard as United Kingdom standards. Any lessening of United Kingdom standards is a concept which I am sure the hon. Gentleman would regret as much as we would. I am sure he and I would agree on the fact that anybody who refuses to recognise the jurisdiction of the court commits a grave offence, but I feel that the hon. Gentleman in putting his argument should not put forward particular adjectives or use certain initial letters.
§ Mr. McMaster
The hon. Member for Kingston upon Hull, North (Mr. McNamara) has raised two points. If he looks at paragraph 4 of the Diplock Report, he will see there set out by the learned judge and his colleagues the reasons why the Committee felt it right that ordinary standards may be set aside—and we know that even the human rights convention admits of some circumstances in which ordinary principles may be set aside.
On the detailed point raised by the hon. Gentleman, I am not aware of any Unionist organisation whose members have refused to recognise the court. It may well exist, but it is a point of detail.
The point I am trying to make is more general and more important. We want to see law and order and peace restored in Northern Ireland. It is not conducive to the restoration of law and order that the great mass of the people in Northern Ireland, who wish the violence to be brought to an end, should see people not recognising the court and thereby avoiding the ordinary processes of law. The ordinary processes of law in this country are so drawn that they favour the accused. It is circumstances such as those that cause embitterment and make more difficult the situation in Northern Ireland.
The primary duty of this House is to establish law and order and to go to whatever extent is necessary to do so. The main function of government is to see that the Queen's peace prevails throughout the country. This is the fundamental point. Clearly in the past three years in Northern Ireland the 813 Queen's peace has not prevailed. All kinds of steps are being taken in a constitutional fashion to reconcile the two elements in the population. It obviously exacerbates the situation when people who are accused of committing violence use the rules of law to avoid conviction. Their success in defeating the processes of law is an outrage. It makes the situation in Northern Ireland much more difficult and it makes the solution of the problem more remote.
Therefore, although Clause 5 may be offensive to all practising lawyers and to people who hold in high esteem the legal principles on which our laws of evidence are founded, it is necessary within the limits prescribed in the Bill. This will enable the public to be satisfied that justice is not only being done but is seen to be done in Northern Ireland.
§ Amendment negatived.
§ Amendment made: No. 8, in page 4, line 1, leave out from 'offence' to 'a' in line 2.—[The Solicitor-General.]