EVIDENCE AND POWERS OF ATTORNEY BILL. [H.L.] (Hansard, 30 April 1940)

§ THE LORD CHANCELLOR (VISCOUNT CALDECOTE)
My Lords, I beg to move that this Bill be read a second time. The Bill is mainly a war measure but, as I will show in a moment, it is proposed to continue part of its main provisions so as to operate in any war in which His Majesty may be engaged. Shortly after the beginning of the war the Service Departments and the Law Society made representations to me as to the inconvenience and hardship which were caused to men serving in His Majesty's Forces owing to the lack of facilities for swearing oaths and affidavits. I thought it was convenient that the matter should be considered by a Committee. I was fortunate enough to secure the consent of my noble and learned friend Lord Maugham to preside over the Committee, and to examine the question and advise me as to what steps should be taken.
The Committee recommended that power to administer oaths should be conferred on officers of substantial rank in His Majesty's Forces, these officers thus taking the place of the Commissioner for Oaths, who would be the ordinary person to act. It is not proposed that junior officers should be entrusted with this power. The orders will be made, according to Clause 1 of the Bill, either by the Lord Chancellor, who will empower officers of His Majesty's Forces to administer oaths, or by the Secretary of State, who will be able to empower persons serving in the diplomatic, consular, or other foreign service of a Power which 218 has undertaken to represent this country, to administer an oath. This last proposal is consequent upon a representation made to me by my noble friend the Foreign Secretary, as to the difficulty of persons who might for the time being be kept in a foreign country when they wanted to make some declaration on oath which was essential. Your Lordships will appreciate, as the Committee pointed out, that it is often desirable and necessary, apart from litigious proceedings, to take an oath, as, for instance, in connection with affidavits which are required on the winding up of an estate of a deceased person, and if this Bill is approved, persons serving in His Majesty's Forces will find ready at hand a means by which they may discharge these duties.
I am asking your Lordships in this Bill to accept the recommendations of the Committee presided over by my noble and learned friend. As I said a few moments ago, it is not proposed that this plan should be limited to the period of the present war; it will continue to operate in any war in which His Majesty may be engaged. There is one class of oath which requires some special provision. Powers of attorney, as your Lordships very well know, are documents of great importance which may be used for the purpose of disposing of the whole of a man's property. It is essential therefore in this connection that some special safeguards should be provided. It is necessary to give some assurance to a person who is asked to act on a power of attorney that it has really been executed by the grantor. The safeguards which were proposed by the Committee, and which have been inserted in this Bill, are, first, that there shall be a witness who will swear an affidavit of due execution, an affidavit which may be sworn before the officer empowered to administer an oath; and secondly, that the power of attorney must be filed or registered in the Supreme Court, or in the corresponding offices either in Scotland or in Northern Ireland, and it is not to be accepted for filing unless it is accompanied by a solicitor's affidavit that he sent the document out for swearing and believes the signature to it to be the signature of his client. It is quite obvious that there is no absolute safeguard against fraud if persons are 219 minded to commit a fraud, but I respectfully suggest that these recommendations of the Committee are so substantial that your Lordships may accept them as satisfactory.
The other part of the Bill deals with a different subject matter. It was apparent, soon after the beginning of the war, that in connection with criminal proceedings it would be necessary very often to give proof of intercepted letters and of other documents, for instance, in prosecutions under the Trading with the Enemy Act, or in connection with offences against the Defence Finance Regulations. It may be necessary to prove that a particular letter went through the post; it may have been intercepted and sent on, or it may have been intercepted and retained. It seemed inconvenient for a junior member of the Censor's Department to prove such facts. In this connection also I thought it desirable to have advice, and again I was fortunate enough to secure a learned Judge to preside over a Committee to consider the matter. Mr. Justice Humphreys, assisted by the Recorder of London and a number of members of the Bar familiar with criminal proceedings, have recommended that proof shall be given in respect of the documents which have to be given in evidence, by a certificate made by a properly authorised officer of the Censor's Department that the letter was intercepted in the ordinary course of the duties of the officers of that Department.
I venture to think that this is a recommendation which will commend itself to your Lordships. The officer who makes the declaration will thus be relieved of the necessity of attending the Court to prove a document, of which it was very likely that he would have no special recollection, intercepted in the ordinary course of the duties of the officers of the Department, and it is reasonably safe to assume that proof of that fact should be satisfactory proof of the existence of the document. As I said, this is a war measure. I venture to think that it is a useful measure which will be very much for the convenience of every serving soldier, sailor and airman who may have duties in connection with legal proceedings and legal matters, and I ask your Lordships now to give the Bill a Second Reading.

LORD STRABOLGI
My Lords, would the Lord Chancellor be good enough to give one word of explanation about Clause 2? He cited instances where these documents were needed in evidence in cases of trading with the enemy and breaches of currency regulations; but there are other prosecutions that might take place against persons to whom the Government objected for various reasons. It is our duty to guard very closely against any weakening of the safeguards which the subject has. I am not learned in the law, like the noble and learned Viscount on the Woolsack and many others of your Lordships, and I am not quite sure—this is the point which I hope the Lord Chancellor will clear up—whether this is only for the purpose of preventing unnecessary journeys to the Courts by censors, or whether it is a widening of the laws of evidence. I should be very much obliged if the noble Viscount could clear that point up.

§ THE LORD CHANCELLOR
My Lords, in answer to the noble Lord, I may say it is an elementary rule of evidence that the best evidence obtainable must be given. If a document must be proved in the course of criminal proceedings, it would be necessary to call someone who remembered having handled it and that it had been intercepted. The object of this clause is to prevent the necessity for evidence of that sort. Ordinarily, a certificate signed by an official of the Department would not be received by the learned Judge as proper proof. The officer himself must be called to prove it, so that, in answer to the noble Lord's question as to whether this is an enlargement of the rules of evidence, to the extent to which a certificate properly signed by an official is accepted instead of evidence by a junior official, that is an extension of the law of evidence; but it is one which, in my humble submission, conduces to more satisfactory proof than could be expected to be obtained, perhaps, from some junior clerk who was expected to remember one of hundreds, perhaps thousands, of documents which had passed through his hands. This would be a certificate by a responsible officer who would be able to ascertain from the records, or possibly from stamps on the document itself, that it had passed through the routine of the office and might therefore be accepted as 221 the document it purported to be, and one that had been intercepted in the course of the post. I hope that explanation will satisfy the noble Lord.

§ LORD MANCROFT
My Lords, may I ask my noble friend a question? Does Clause 3 affect the cast of which I shall give an instance? A soldier is called up and joins his regiment overseas. He has given an ordinary proper power of attorney to his father, and in a few weeks he becomes a trustee or executor under a will. His father will probably act under the power of attorney and carry on the duties which the son would have undertaken. Does Clause 3 interfere with such a power of attorney?

§ THE LORD CHANCELLOR
The answer is in the negative. A power of attorney executed before the grantor went abroad on military service would be as effective after the grantor had gone on military service as it was while he was still in this country.

§ VISCOUNT MAUGHAM
My Lords, may I add one word to the reply which has been given regarding Clause 2? Unfortunately the noble Lord who raised the question has left the House for a moment. Those who are not acquainted with the law—fortunate people!—are perhaps not aware that there are a number of things which are taken by the Courts as being proved because they are in the ordinary course of business. One of the simplest examples is that if you produce a letter with a particular postmark on it—let us say, the first of April, in a particular year—you do not need to call the official who punched the letter and put the postmark on. The Courts take it that it was postmarked on that particular day, and therefore either arrived or left as the nature of the postmark might require, on the date mentioned. There are many other examples of this kind. In this particular case, two things are being made admissible evidence in the Courts which are almost as simple and obvious as that.
It is true, as my noble friend has said, the Bill does extend the laws of evidence because it admits something as evidence without positive proof. The two things are these. In the first case you have got somebody employed in an office, say, in 222 Victoria Street, who has opened a bundle of letters and has found a document within it, and that document has got to be subject to certain legal proceedings hereafter. That person, as my noble friend has said, is perhaps looking at several hundred documents a day, and the case may come on for hearing before some tribunal weeks or months, perhaps longer, afterwards. He or she cannot possibly remember, but has to go and say, "Yes, I opened that bundle, and I found that letter there," and so do his or her best, with the help, no doubt, of others. This provision gives you something that is probably better than the evidence which he or she would give, because what it requires him or her to do is to make a certificate as soon as a question has arisen regarding the document, certifying that this letter was in a particular postal packet which he or she examined a few days before. That certificate can be produced in evidence months later, and will be proper evidence that it was in the packet on that particular day. I do not hesitate to say that a certificate of that sort, made shortly after the official in question opened the packet, is much better evidence than he or she could give by coming to swear to it in Court months afterwards, because it is certain that the official in question has got no interest at all in the matter and has simply opened the packet and found the letter there.
The other matter is with regard to photographs. You generally have to call a photographer, but in many cases you do not bother because the other side will admit the photograph. A photograph, though it may be faked, as certain very ingenious proceedings by certain people in foreign countries show, gives you a very good copy of documents. This only requires that somebody should certify that the photographic copy is a true copy of the document which formed or constituted part of such a postal packet as was mentioned. I hope I have not detained your Lordships unnecessarily, but I rather agree with my noble friend Lord Strabolgi that one ought to be very careful about any alteration of or tampering with the law of evidence, and for my part I should never resent people requiring the fullest explanation of any such alteration, but, if I may say so, I most fully agree with what has 223 fallen from the noble and learned Lord Chancellor that really these are matters to which this House can properly agree.