CRIMINAL EVIDENCE BILL (Hansard, 18 May 1965)

§ LORD STONHAM
My Lords, this is a short Bill dealing with a limited aspect of the law of evidence. It is none the less one of considerable importance to the administration of criminal justice. Its purpose is to permit the use in evidence in criminal proceedings of certain trade or business records, which were found to be inadmissible under the present law by the decision of your Lordships' House last year in the case of Myers v. Director of Public Prosecutions. Before that decision, it had been common practice for the courts to receive such evidence, in the belief that it was admissible. This Bill will give statutory authority for the resumption of the previous practice.
I think it may assist the House if I recall briefly the facts of the case of Myers, who was convicted on a number of counts involving stolen cars. He was an ingenious thief who worked most industriously at his trade. His method of operation was first to buy a wrecked car, thereby acquiring its log book. He would then steal another car, in good condition but otherwise as nearly as possible identical with the wrecked car, and proceed to disguise the stolen car so that it corresponded in all obvious respects with the particulars recorded in the log book of the wrecked car. The stolen car was then sold under its disguised identity of number plates, and so on. He thought he had got away with it, but what he could not disguise was the block number, which was indelibly stamped on the engine of the car at the time of its manufacture, and at his trial evidence was given from the records of the manufacturer to prove the identity of the stolen cars.
The chain of evidence involved was this. When the car was on the assembly line a workman recorded on a card the block number stamped on the engine. The card was first microfilmed and then destroyed, and the film was then stored with other similar records of the company. At the trial evidence of the block numbers was given by the person who kept the records, by the production of the microfilm, together with a transcript of the particulars contained in it. On appeal 388 to Your Lordships' House it was argued that this evidence was inadmissible because its cogency depended on hearsay. All the witness could say was that a record made by somebody else contained certain statements: he could not prove that those statements were true. This argument prevailed. The noble and learned Lords who considered the appeal decided, by a majority of three to two, that the evidence of the microfilms was hearsay, and that it was not within any of the recognised exceptions permitting the admission of hearsay evidence.
Their Lordships reached this decision with understandable reluctance. They disapproved the admission of the evidence in question, not because they thought it to be undesirable but because they were unable to find any sanction for it in the existing law. Those who have read their Lordship's Opinions in the case will know that they fully recognised the desirability of continuing the previous practice, and the practical difficulties which would be created by the decision that it could not be continued under the law as it at present stands.
These difficulties arise not only in cases of car stealing but also in numbers of other cases, particularly those involving fraud. As was pointed out by the noble and learned Lord, Lord Donovan, in a dissenting Opinion, the consequence of the ruling, as applied to other criminal cases, is to make the conviction of offenders more difficult, and sometimes impossible. I believe that your Lordships will agree that this is an impediment to the administration of justice which ought to be removed. Of course there are good reasons for excluding hearsay evidence so far as possible. But there are circumstances in which hearsay evidence is the best, perhaps even the only, practicable evidence of the facts, and there are already a number of established categories in existing law in which hearsay evidence may be admitted in criminal proceedings. Evidence from public records is one example; evidence of statements made by persons who have since died is another. Her Majesty's Government therefore consider that, subject to certain safeguards, routine commercial records should be similarly admissible. This will be secured by the 389 Bill. And here I ought to say—and I am very glad to do so—that its preparation was originally put in hand by the previous Government.
As your Lordships will see, the Bill is limited to the admission of that class of records which was covered by the Myers case; namely, records relating to a trade or business. We are only too well aware that there are various other aspects of the law of evidence in criminal cases which need examination. These are now being looked at by the Criminal Law Revision Committee, which has recently begun a comprehensive review of the law of criminal evidence, in parallel with a similar review by the Law Reform Committee of evidence in civil proceedings. For the present, therefore, we do not invite the House to make any change in the law of evidence beyond this limited one, for which there is an immediate need of action, to remove the difficulties created by the Myers judgment.
There is already provision in the Evidence Act, 1938, for the admission in civil proceedings of certain documentary evidence which would otherwise be excluded as hearsay. The Bill is broadly based on the provisions in that Act, but with the adaptations necessary to meet the special requirements of criminal proceedings and to take account of modern methods of keeping business records.
The essence of the Bill is contained in subsection (1) of Clause 1. This provides that a statement contained in a document shall, on production of the document, be admissible in any criminal proceedings as evidence of a fact, provided that certain conditions are satisfied. The first—and obvious—condition is that direct oral evidence of the fact would be admissible. The second condition, which appears in paragraph (a) of the subsection, relates to the nature of the document. It must be, or form part of, a record relating to a trade or business, and must have been compiled in the course of that trade or business, from information supplied by persons, who had personal knowledge of the facts, or who may reasonably be supposed to have had such knowledge. It is this which permits the document to be put in evidence notwithstanding that it is strictly hearsay.
390 The third condition (paragraph (b) of subsection (1)) is that the person who supplied the information—the assembly line worker in the Myers case—is physically unable to give evidence, or cannot be identified or found, or could not reasonably be expected to remember the facts—for example, the block number on a particular engine. This last alternative has no parallel in the equivalent provisions of the Evidence Act, 1938, relating to civil proceedings, or in the criminal law. But it is, we believe, a departure which is reasonable and desirable. It recognises the fact that where detailed records are made as a matter of routine the record itself will usually be more reliable evidence of the fact recorded than the imperfect recollection of the person who originally witnessed and recorded it. It is surely unrealistic to expect, for example, that an employee engaged in repetitive work on the factory floor will be able to recall with any certainty, particularly after a lapse of time, perhaps years, the precise details of one of many repeated operations. You might just as easily ask a worker in a sweet factory to identify a particular Pontefract cake he had stamped out. For the purposes of establishing the truth it is better in these circumstances to rely on the record of the fact compiled from the report which he made of it at the time.
Subsections (2) and (3) of Clause 1 contain ancillary provisions relating to the admission of evidence under subsection (1), and follow similar provisions in the Evidence Act, 1938. The definitions in subsection (4) take account of modern techniques for the keeping and storage of information by microfilm, computer, or tape recording. The statement of fact need not be recorded in words but may, for example, be by symbols; and the document which contains the statement need not be a conventional routine record, but may be any device by means of which information is recorded or stored. I hope I have convinced your Lordships that this is a necessary measure and that, although certain aspects of it are novel, there are adequate safeguards to prevent possible injustice. My Lords, I beg to move that the Bill be now read a second time.

§ LORD NEWTON
My Lords, I am sure that we are all grateful to the noble Lord the Under-Secretary for the clear and succinct way in which he has explained the purposes and detail of this Bill. As he told your Lordships, the preparatory work on it was done by the last Government, and I would imagine that a Bill of this nature would at this time have been introduced by any Government. In doing so I would think that the Government are inviting Parliament to do what this House, sitting in its judicial capacity, thought that the Legislature ought to do. So I should just like to express, on behalf of my noble friends, our complete support for this Bill, and also the hope that your Lordships will pass it speedily.

§ LORD CHORLEY
My Lords, I should like to say a word or two about this Bill. It is of particular interest to all of us who, in our humble capacity at quarter sessions, are concerned with administering the criminal law. On our behalf, I should like to give it my support and to welcome it. The noble Lord has explained how from time to time the hearsay rule works injustice. It was established because in going round the country dealing with criminal cases it was found that juries at that time were to a large extent illiterate. It was, and no doubt up to a point still is, a quite sensible rule. It had no sooner been established of course, than the judges found that it was necessary to open up all sorts of exceptions to it, and, as the noble Lord has explained, it was thought for a number of years that the kind of evidence which was given in this motor theft case, which has been used without any objection in many similar cases for many years, was within one of the exceptions, in a decision which some of us have felt was a little technical. By a majority, the Law Lords came to the conclusion that that was wrong, and I am sure that we should all agree that it is right that this should be done.
This whole business illustrates the slowness in catching up with these problems. It is as long ago as the passing of the Bankers' Books Evidence Act, right back in the 1880s, that the first step was taken to make evidence taken from ledgers kept in banks available in cases 392 in court, and it was something like fifty years later that the 1938 Act, for which I think we owe a great deal to the late Lord Maugham, who at that time sat on the Woolsack, was introduced, to widen exceptions established in the Bankers' Books Evidence Act. The 1938 Act was in many ways limited, as indeed appears from the Bill before us to-day because this Bill brings into the criminal law a rather wider extension of the hearsay rule than appeared in the 1938 Act. The 1938 Act has not always been administered by the courts with the liberality which one would have hoped for, and it is greatly to be hoped that this Bill, when it becomes law, will receive a rather more liberal interpretation than the 1938 Act has sometimes received at the hands of the courts. The 1938 Act, on the whole, has certainly worked well, and I have no doubt at all myself that this Bill, within its limited scope, will work well, too.
Your Lordships will all be glad to hear that the whole law of evidence, and particularly the hearsay rule, is under consideration at the present time. The hearsay rule is a peculiarity of the Common Law, and if one were to go into a court in Germany or France, or in almost any other continental country, one would not find the hearsay rule being used. Of course, the answer is that cases there are, on the whole, dealt with by professional lawyers and not by juries of ordinary people brought in to deal with the administration of justice. But jurors are much more educated than they were 200 years ago, when the hearsay rule was established, and I think most practical lawyers would now take the view that, under the wise and experienced direction of a judge, it is perfectly possible for the jury to make use of hearsay evidence in the sort of way that a man or woman of common sense does every day in the ordinary affairs of life. I am sure it will be better for everybody, and I hope that the noble Lord will convey everybody's support to the Committee which is dealing with this problem at the present time, in the hope that they will soon be able to bring forward a Report which can rapidly be put into the form of a Bill and become the law of the land so that these difficulties may no longer clog the administration of the law.

§ LORD ALPORT
My Lords, may I ask a question of the Minister before we 393 proceed with this stage? I assume that this Bill has no retrospective effect? Secondly, has it any application to any cases that are sub judice at the present time?

§ LORD STONHAM
My Lords, the Bill has no retrospective effect. So far as cases which are sub judice are concerned, presumably its application will depend on when it starts to operate. I really cannot give him an "off the cuff" answer on that one. When those concerned come to trial, they will presumably be tried in accordance with the law at the time of the trial. I should like to thank the noble Lord, Lord Newton, and my noble friend Lord Chorley—

§ LORD CHORLEY
My Lords, those cases would almost certainly be decided before this Bill becomes law.

§ LORD STONHAM
—for their welcome of the Bill, and for the remarks that have been made. I would also thank my noble friend Lord Chorley for reminding us that, although the law catches up somewhat slowly, it does catch up. I hope that this Bill will reach the Statute Book in a few weeks from now, and that nobody else will be able to do what Myers successfully did.