CIVIL EVIDENCE BILL [H.L.]

HL Deb 22 February 1968 vol 289 cc636-85

6.54 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD GRENFELL in the Chair.]

Clause 1 [Hearsay evidence to be admissible only by virtue of this Act and other statutory provisions or by agreement]:

THE LORD CHANCELLOR moved to leave out subsection (2). The noble and learned Lord said: Your Lordships may remember that on the Second Reading the noble and learned Lord, Lord Wilberforce, expressed the view that Clause 1(2) for its complication was worthy of a Finance Bill. I said I was glad to hear him say that, because I myself found it very difficult to understand. I have come to the conclusion that it is not really necessary. The purpose of the subsection is to make it clear that a statement which fails to qualify for admissibility under one statutory provision is not thereby prevented from qualifying under another. Clause 1(2) is intended to remove any possibility of conflict between a provision (such as Clause 2(2)) which makes admissibility subject to the court's discretion and one which makes the same statement admissible as of right.

It is not very likely, though it is theoretically possible, that such a situation could arise; a possible instance, I suppose, would be afforded by an out-of-court statement amounting to an admission, but this is expressly dealt with by Clause 9(5). However, even in the case of such an out-of-court statement not expressly covered by Clause 9(5) there seems to be no possibility of such a conflict. Those provisions (for example Clause 2(2) and Clause 4(2)) which make admissibility discretionary operate on statements made admissible "by virtue of this section" and cannot therefore affect the admissibility of a statement by virtue of some other enactment. Moreover, Clause 1(1) states in terms that a statement shall be admissible to the extent that it is admissible by virtue of any provision in Part I of the Bill or any other statutory provision. In view of these unambiguous words, there appears to be no need for subsection (2). I beg to move.

Amendment moved— Page 1, line 13, leave out subsection (2).—(The Lord Chancellor.)

LORD WILBERFORCE

Having expressed myself with some vigour about this subsection on the Second Reading of the Bill, I feel I should be ungracious if I were not to express gratitude to the noble and learned Lord the Lord Chancellor for now consenting to its removal. While I still consider that the Bill as a whole and in many other respects is needlessly complicated, certainly one welcomes this effort at simplification, because it at any rate indicates to those of us, and I think there are many, who consider that most of our legislation is drafted in too tortuous or elaborate terms, that our views may be shared in high places in certain respects. Having heard the Lord Chancellor's statement as to the lack of necessity for this subsection, a view with which I entirely agree, I certainly welcome and would support the Amendment for its deletion.

VISCOUNT COLVILLE OF CULROSS

I would only briefly echo what the noble and learned Lord, Lord Wilberforce, has said. I think in view of a number of factors, one of which I should like to mention in a moment, the simpler we make Part I of this Bill the better.

On Question, Amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS

It might be appropriate at this stage to raise one of the points where this Bill departs from the recommendations of the Committee presided over by the noble and learned Lord, Lord Pearson. The clause starts "In any civil proceedings", and this means that the rules of evidence which are contained in Part I of this Bill will be applicable in the magistrates' courts.

In paragraphs 48 to 52 of their Report on Hearsay Evidence in Civil Proceedings, the Committee presided over by the noble and learned Lord advised that this should not be so, and they have really taken two points as underlying this reason—possibly three points, but two seem to me to be of particular importance. The first point is that it is not going to be easy to establish the rules, or indeed any sort of cohesion in the application of the rules, where the discretion of the court is involved, as is the case; and the noble and learned Lord the Lord Chancellor has already mentioned the fact.

The second point is that of the difficulty of providing for the procedural safeguards, which are of course to be dealt with under Rules of Court for the High Court and the county courts and, I would expect, in other necessary tribunals. The Committee in its Report pointed out that a number of the civil jurisdictions of the magistrates are not really such as to give rise to the type of evidential problem with which this Part of the Bill deals. Nevertheless, there are points of civil jurisdiction, such as the work of the domestic court in guardianship and affiliation, and particularly in matrimonial cases, where their work is of the same character as civil litigation conducted in the High Court, or now in the county courts.

I was looking at the Rules at the back of Stone to see whether there was already anything which appertains to this question of evidence. Of course, it is quite true that the Evidence Act 1938, as I understand it, applies in the magistrates' courts. Then the Report of the Committee drew attention to the fact that the sort of matters with which that Act deals do not often arise in magistrates' courts. But I should think that the sort of matter with which this Bill deals may easily arise. Therefore, if we are to have a Bill which goes against the recommendation of the Committee, I think it would be useful if the noble and learned Lord the Lord Chancellor could tell us, at any rate in outline, what he is proposing to do in order to get over the practical difficulties which the Committee have pointed out. I can, for instance, see nothing in the Magistrates' Courts (Matrimonial Proceedings) Rules 1960 which is helpful. It may be that an Amendment should be put in there. Equally, the short passage in the Magistrates' Courts Rules of 1952, Rules 55 to 57, really has nothing at all which is relevant to this matter.

I would not know in the least what the noble and learned Lord has in mind by way of a possible amendment of these Rules. I cannot believe that anything nearly so complicated as would be required for the High Court is going to be workable in the magistrates' courts, particularly when some of the people concerned are not legally represented at all. I really think that we ought to have an explanation of this matter before we pass this clause in its present form. I hope, therefore, that the noble and learned Lord the Lord Chancellor will be able to enlighten me. I may have to trouble your Lordships by returning to this matter at a later stage, but I think it would be useful if the noble and learned Lord could give some sort of outline of what he has in mind.

7.4 p.m.

THE LORD CHANCELLOR

Of course, the whole question whether the Bill should extend to magistrates' courts was always a matter of opinion. The Committee made that clear. On balance, they recommended that, for the time being at any rate, the present Rules of Evidence with respect to hearsay should continue to apply in civil cases heard in magistrates' courts. They say: In reaching this conclusion we have been influenced by the fact that the Criminal Law Revision Committee are currently reviewing the rules of evidence in criminal cases. As I understand it from inquiries which have been made, those recommendations are likely to include features which will make them unsuitable for civil proceedings. Moreover those with great experience of civil proceedings in those courts have expressed the view that the Law Reform Committee's proposals would be suitable for magistrates' courts, and that it would be better to apply them than to leave magistrates' courts, when exercising civil jurisdiction, to be governed by Rules of Evidence which would no longer be applied in any other tribunal. It would mean, for example, that it would be the only court left in which the Evidence Act would apply. I agree that rules would be necessary, but I should think they would be of a much more limited character than those in High Courts proceedings.

The only occasion that it is likely to arise in civil proceedings in magistrates' courts is, for example, in regard to statements by doctors. But there should be no difficulty in applying these new hearsay provisions to that matter. One usually gets a date which is fixed well ahead in the magistrates' court—certainly more than seven days—and it is just this sort of thing which, unless there is any real dispute on it, ought to be dealt with in this way rather than a doctor having to come to Court only to find that his attendance is unnecessary. The only other proceedings in which I think such evidence might well be needed is in proceedings for rates, for example, where already, as I understand, some rates are dealt with by computers. I imagine some rules will have to be made to cover that. There is not usually much difficulty.

Then, of course, there is the Bankers' Books Evidence Act. There again, if you have once got a bank statement in evidence it is in effect up to the other party to challenge it, which is not always easy. Still, you can put in your own cheque book and counterfoils, and you will be able to put in the cheque book and counterfoils of a third party. So there will be a necessity for rules; but I imagine that they will be of a much simpler character than those which may become necessary in the higher courts.

Clause 1, as amended, agreed to.

Clauses 2 to 4 agreed to.

Clause 5 [Admissibility of statements produced by computers used for purposes of any regular activities.]:

7.7 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (4)(d), to leave out from "contents" to the end of the paragraph, and insert: may, subject to disclosure in any certificate made under subsection (3)(b) above or in evidence of the respect in which the computer was not operating properly or was out of operation, be disregarded.

The noble Viscount said: This is the clause in the Bill which deals primarily with the computers to which the noble and learned Lord the Lord Chancellor has just referred. I was most interested to hear what he said about rules about computers being made for magistrates' courts. But I do not want to pursue that point at this moment. I should like to deal with the matter on a rather more general basis.

The subject matter of this Amendment relates to one of the prerequisites in Clause 5(1) which has to be shown before the product, the print-out of the computer, may be admissible as evidence of any fact stated therein. It has to be shown that at the time when the document was produced—for this purpose, as I understand it, the document is either a print-out or a transcript of what comes out of the computer for the purpose of the specific case—the computer was operating properly; and then, in order to avoid a great deal of wasted time on the part of the people who run computers, in large companies or indeed in computer bureaux, there is a provision in subsection (3)(b) whereby the fact that the computer was operating properly can be given by certificate. That certificate is, I think, open to challenge, but in the first place it can be given by certificate.

Then in subsection (4)(d) there is the provision which says that if the computer was not operating properly, or was out of operation in any respect which did not affect the production of the document or the accuracy of its contents, that fact would be disregarded. The effect of this, as I understand it, is that the person who gives the certificate has only to say, "The computer was operating properly". He has not to give any notice at all of any respect in which it was not operating properly or was out of operation if he thinks that this did not affect the accuracy of the product. The question of whether it did or did not affect the accuracy of the product is a matter which may be extremely relevant.

I know but little of the computer world, but from such little knowledge as I have gathered I understand that there is all the time a search going on for new methods of making computers securely accurate. All sorts of counter checks are built into the electronic process itself. They take different forms, and no doubt there are sometimes more than one in a given machine. But I should have thought that it is perfectly possible that the view of the computer operator would be wrong that the thing which had gone wrong with his computer at the relevant time was not such as to affect its accuracy. It would be highly relevant to the person against whom this evidence was being used to have the opportunity to discover that there was something wrong with the computer at the time and to check whether this affected the, accuracy of the information produced by it.

I suggest therefore that, instead of giving the discretion to the operator of the computer when he produces his certificate, whereby if he thinks it right he can completely withhold the information that there was something wrong with the computer from the adverse pasty, he should have to show that there way something wrong and explain what was wrong. It may be that this will be accepted by the adverse party and that nothing more will be made of it, but it will put the adverse party on notice that there is a possible cause of inaccuracy.

I appreciate that the last thing we want to do in considering the admissibility of computerised evidence in civil proceedings is to make it too difficult to bring it in at all. This point was made by the noble and learned Lord on Second Reading. These are bound to be complicated machines, and I do not suppose they will get any simpler. If we are going to have a prerequisite of this sort, we must be careful to consider whether, while at the same time making it a proper prerequisite, we can give the other side the due opportunity it should have to check whether the prerequisite is fulfilled or not. I do not believe that this is necessarily the right way of drafting the matter, but I wish to draw attention to the position to see whether the noble and learned Lord might not feel that something could be done about it. I beg to move.

Amendment moved— Page 5, line 19, leave out from ("contents") to end of line 20, and insert the said new words.—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

What the noble Viscount has said seems in principle to be right. His purpose, as I understand it, is to ensure that, if the computer has been defective, the party's opponent is made aware of it so as to be able to use that knowledge in appropriate circumstances to dispute the reliability of the record. I do not want to repeat what the noble Viscount said; it seems to me to be right in principle. He went on to say that the drafting may not be perfect; that also has been suggested to me. But if the noble Viscount will withdraw the Amendment, I undertake to prepare what I hope will be an improved draft and to put it down on Report.

VISCOUNT COLVILLE OF CULROSS

I am very much obliged to the noble and learned Lord. I gladly beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (5), to leave out "section" and insert "Part of this Act". The noble Viscount said: With the leave of the Committee, I should like to take with Amendment No. 3, Amendment No. 6. Amendment No. 3 is a paving Amendment for No. 6, although No. 6 is related to a different clause.

I would ask the Committee to look at Clause 8(1) and to compare it with Clause 5(1). Before I get on to the question of discovery, I feel that there is a possibility of difficulty arising in the process of rule-making under this Bill. The admissibility of computerised evidence is said in Clause 5(1) to be governed by rule-making powers of the court. It shall, subject to rules of court, be admissible …". That is a completely general statement and it would not tie down the rule-makers in any way if they thought that they had to bring out new rules to cope with a new situation brought about by a technological advance, or if they had got it wrong in the first place. But then it would be seen that in the extremely important provisions of Clause 8, although it is true that in subsection (3)(c) there is provision for differentiation in these rules to meet different circumstances, nevertheless Clause 5 of the Bill is in principle governed by the provisions in Clause 8, since it says so in Clause 8(1). Therefore, when one is looking at the whole of the computer department of this Bill separately from the other and perhaps slightly less difficult aspects of it, one wonders whether there might not be provisions in Clause 8 which will tie the hands of the rule-making body in a way in which they would not be tied if all references to Clause 5 and computers was left out of the subsequent clauses which provide for rule-making powers and if rule-making authorities were left to themselves to construct their rules with a free hand in Clause 5 itself. I think that this is a point well worth considering.

The point in Amendment No. 6 arises out of the special difficulties which I envisage will turn up in the realms of computers. I do not suppose that rule-making powers, discovery and inspection of documents, is strictly in order on this Bill, but it may be convenient to deal with that. Order 24, Rule 9 of the Rules of the Supreme Court, says: A party which has served a list of documents on any other party must allow the other party to inspect the documents referred to in the list and to have copies thereof. Suppose that the only information available in the plaintiff's case is contained in a computer. It may well be that the complete print-out of the computer has not been made, or on the contrary it may be that a complete print-out has been made but contains a good deal of material which is not relevant to the case. It may also be that the form in which the material is available is not understandable to the adverse party without the plaintiff or his experts translating it into some sort of English, since the material might consist of magnetic tapes, films, or something of that nature. I feel that the rule of the Supreme Court is not altogether apt in its present form to deal with computers.

Then there is another point in Rule 14, Order 24 which is even worse. It deals with the production of business books, which is directly relevant to the question of computers. It provides that the business books may, instead of being brought in their original form, be dealt with by means of a copy of the entries to be supplied, which may be verified by an affidavit by some person who has examined the copy with the original books. Then sub-rule 2 says: Any such affidavit shall state whether or not there are in the original books any and what erasures, interlineations or alterations". That is not the way in which computers work. Many computers start off with a basic piece of information—for instance, how much I owe to a large shop. Every time I do another transaction with the shop, they erase completely from the tape the previous entry and the computer replaces that by another one showing the up-to-date information. I am told that they by no means always get it right, but that is perhaps beside the point. There really is no provision whatever in the computer world for looking at the business book to see whether there have been any erasures, interlineations or alterations, because a computer is so devised that it automatically disposes of any such thing.

Now how, in the course of the conduct of a case, is one to be able to go behind the product of the computer as it finally emerges after a number of transactions have been considered and dealt with by it, and when the previous situation before any of these transactions took place has been altogether erased? Will there be the coding and the programing which was fed into the computer, as well as the initial entries, perhaps in card form or something of that nature, available? I think not, because I imagine that in a large number of cases, if you are going to have a computer at all the whole object will be to get rid of all that paper—indeed, there may never be any at all. It may be done automatically by the computer, simply by sending it a message along a wire, and there may never be any pieces of paper at all.

How are we going to be able to deal with this aspect of computerised evidence? I frankly have no idea, but I believe it is a matter of the greatest importance when one is considering the admissibility of that final bill which the computer producers and says is what I had in the shop. How am I to go behind it and see how it was made up, and check whether or not the computer has put it down right? It will be interesting if the noble and learned Lord can give us some views, even if they are only provisional ones, first of all on whether the existing rule-making powers are wide enough to deal with this subject at all; and, secondly, and perhaps much more important, if we are going to have computer evidence admissible at all under this Bill, on how he actually thinks some of those difficulties are going to be overcome. I beg to move.

Amendment moved— Page 5, line 21, leave out ("section") and insert ("Part of this Act").—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

I am sorry that I cannot be equally accommodating about this Amendment. Of course, the rule-making powers are of the widest possible description and, obviously, rules will have to be made. But this is not a Bill dealing with matters of practice and procedure in the Supreme Court; it is strictly a Bill dealing with the admissibility of evidence. The two difficulties which I feel about the noble Viscount's proposal are, first, that it would be going beyond the normal functions of discovery to require a party who has in his possession information which is not readily intelligible on which he does not himself seek to rely, to do more than make it available as it stands to his opponent. Where, for example, you have in your possession a document in a foreign language you must disclose the document, but you are under no obligation at all, if your opponent does not speak that foreign language, to translate it for him. The party disclosing it cannot be compelled under the existing rules to furnish such things.

Secondly, the compulsory disclosure of such devices as magnetic tapes or discs would raise considerable problems, because it would be impossible, in the absence of a transcript, to ascertain what parts were relevant, and "blanket disclosure" might mean that the party was compelled to disclose all sorts of matters which, had they been contained in written documents, he could have covered up I appreciate that modern methods of recording information may in due course require the Rule Committee of the Supreme Court to consider whether the current rules of discovery need amendment. These rules operate on "documents" which are not defined in the rules, but are generally construed as meaning writings, pictures or plans readily intelligible by sight.

It is understood that the rule has been used to compel disclosure of a tape recording, though whether or not that was right is not for me to say. But whether the rule should be extended to cover, with suitable safeguards, magnetic tapes and so on, is a matter which the Rule Committee will no doubt have to consider. But the Amendments are, I submit, unnecessary for this purpose, since the rule-making power under the Act is already wide enough. Finally, it is relevant that Part I of the Bill is not concerned with discovery but with the admissibility of evidence. The Amendments would introduce matters which are, to a large extent, really outside the scope of the Bill. It is for those reasons that I advise the Committee not to accept the Amendment, though I hope the noble Viscount may be prepared to withdraw it.

LORD AIREDALE

I feel that we ought to be a little careful here. We are treading upon new ground. I cannot feel that the analogy with foreign languages, which was put forward by the noble and learned Lord the Lord Chancellor, is a very happy one. After all, with almost any foreign language that one can think of there are people available to translate it into English, but I rather doubt whether, at any rate so far, computer language—that is to say, the form in which information is fed into a computer and the form in which it comes out of a computer—is necessarily intelligible to anybody except the person who operates that particular computer.

I think it would be very unfair to produce a sheet of gibberish to the lay mind and to say, "That was what was fed in and here is the sheet of gibberish that came out. You must work out for yourself what it means." It might be quite impossible for the other party to work out what it means. It might be possible only if the party operating the computer himself produced a translation. Therefore I feel that we have to be careful here and that the foreign language analogy is not quite fair.

VISCOUNT COLVILLE OF CULROSS

I am not very happy about this, I am afraid, but I am grateful to the noble Lord, Lord Airedale, for supporting me. I appreciate what the noble and learned Lord says about the subject-matter of the discovery and inspection being a little outside the terms of the Bill, but the way I put it is this: if you are going to say that in certain circumstances the printout of a computer is to be admissible as evidence, what you are doing, and very rightly, is saying that modern methods of business accounting and business bookkeeping are to be able to be used in the courts, because that is the way that a great many people are going to keep their records. I think it was the noble and learned Lord, Lord Wilberforce, who drew attention in the Second Reading debate to the fact that an increasing number of business concerns are going to have nothing but computerised records. That is going to be a growing fashion and no doubt an extremely efficient way of doing business.

In an ordinary action, where book-keeping is done in a ledger or in any other form which can be read, there is the possibility that you will be able to look at the entries which were made and upon which the case is being rested by the other side. But if there is nothing in the way of records except a computer, how on earth will you ever be able to challenge the final output, the figure that it produces or whatever it may be, in a complicated case, unless we think about the methods by which discovery and inspection are to be achieved? I think—and I do not know what the Committee thinks about this—that before we allow the print-out of the computer to be admissible at all, we ought to examine the other parts of the processes of law, to see whether or not there will be insuperable difficulties if we prima facie allow the computerised evidence to come in.

It is in that context that I am asking the noble and learned Lord to be a little more forthcoming. He said, and I quite appreciate this and I think it is exceedingly important, that if you allow discovery to go too far the adverse party is going to find out a great deal more than he ought to. Of course, that is a grave danger and it ought to be provided against. It ought to be thought about at this stage, when we are dealing with Clause 5 of this Bill. We ought not to say, "This is something which will have to be dealt with in due course by some rule-making committee when the problem crops up." I do not believe that that is right. I believe we ought to deal with the matter now.

The other point which the noble and learned Lord made was this. Why should the person who has the computer have to provide a transcribed copy of its contents? You do not have to do so if the document is written in a foreign language. The noble Lord, Lord Airedale, produced a very good answer to that point. The product of that computer has emerged only because it was the result of information fed in in a particular form. You cannot work a computer unless you have a coding system and a program—which, incidentally, is spelt with only one "m", I believe. You cannot work it without that, and the result of the computer is wholly meaningless unless you know what those initial stages of the process were.

Now, even if the document, in the form of a tape or a pile of punch cards, is going to be given to the other side as such, the other side cannot possibly turn that into a transcript unless they go back to the party whose computer originally produced it, or into whose computer it was fed, because it will have to be checked back with that other party. Where is the saving of cost in requiring the party who wishes to look at this computer to beaver away with his own experts when he either gets absolutely nowhere or, even if he does get somewhere, he has to take it back to be rechecked by his opponents' experts who know how the computer works in the first place? I should have thought there was everything to be said for making the person who relies on a computer in business recording produce the thing in a form in which it can be understood. He will have to do it anyway in due course, so why not do it in the first place?

I am afraid I am not at all content with the answer the noble and learned Lord gave about this. I hope there will be an opportunity, while this Bill is going through Parliament—and I hope particularly in this House—for a lot more thought to be given to this. There are, it is certainly true, consequential difficulties to admitting computer evidence, but to judge by what the noble and learned Lord said I do not think they have been thought out at all. Would the noble and learned Lord give me an undertaking that rather more study will be given to this sort of aspect? I will certainly withdraw the Amendment if he will say that; but I do think I ought to press him a little on this.

THE LORD CHANCELLOR

I appreciate very much this very interesting discussion, but where the noble Viscount will I hope renew the discussion will be at the meetings of the Rule Committee. This Amendment is not one which says, "We must put this in the Bill; we do not want to leave it to the Rule Committee". This Amendment is one which merely provides a power which is already there, for rules of court to be made. The existing power is wide enough to make the rules. I could understand that there might be some argument for saying that this should be in the Bill, although I should not agree with that myself for two reasons: first, because it would really be outside the scope of the Bill—discovery rather than admissibility of evidence; and secondly because this is something new; it is developing. If we get a rule wrong, we can put it right. That is very much easier than if we put something into an Act of Parliament and then want to alter it.

But in any case the noble Viscount is not suggesting that we should put it into the Bill, but in the rules. I agree that it does want a great deal of thinking about before rules of court are made. I quite agree with that. If a million facts are stored in a computer, which may very well be the case, and you do not know until you have the whole thing recorded whether or not there is anything relevant to an issue in an action, it would really be an intolerable burden to have it all recorded in a form that people could read, because the amount of records which can be got out of a computer is extraordinary. There can very well be stored in a computer all the sentences of all the courts in all the criminal cases for a year. We have in fact had this done in relation to all the magistrates' courts in the case of the six simplest kinds of driving offences, and the sheets and sheets of paper are of terrific quantity. Nobody knows until the right button is pressed what is going to come out. I quite agree that in both ways there are difficulties to be considered, and I very much hope that the noble Viscount may be able to attend the meetings of the Rule Committee when they consider these very important questions.

VISCOUNT COLVILLE OF CULROSS

The noble and learned Lord flatters me too much. I know far too little about computers to be able to do this. I make the single point, before I withdraw this Amendment, that this Bill will become an Act, and it will say, "Computerised evidence is admissible". Simultaneously with that, there must be adequate rules to deal with that situation. It may be that they have not been worked out now, but we must have an undertaking I think—and I know this Bill can be brought into force in different bits—that before this bit comes into force there will be rules covering the sort of things (I know they are terribly difficult) that both the noble and learned Lord and I have been talking about. I am sure this will be so, and on that basis I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 5 shall stand part of the Bill?

LORD WILBERFORCE

I should like, if I might, to make a few observations on this very important clause, not in relation to any particular suggested change, but perhaps in relation to its place in the Bill. The first point I should like to make is similar to that which I made in relation to Clause 1, which is that it is a very complicated clause. It certainly enables computer evidence to be brought in, but it hedges it around with a very elaborate procedure. Three conditions in subsection (2) have to be complied with. It is necessary to produce a certificate in accordance with subsection (3); and then there may be rules—there no doubt will be—which will introduce other complications and which may involve the attendance or the potential attendance of persons concerned with the making, recording or production of statements, as suggested in Clause 8(2)(a).

The point is this. This may be inevitable at the present stage, which is rather experimental, but personally I should very much hope that the stage would come, and that the noble and learned Lord the Lord Chancellor might perhaps indicate that he would not resist the stage coming, when some much simpler version of this procedure might be acceptable. In the United States, and I think also in other places where computer evidence is used, it is a matter of routine. There is a simple provision saying that evidence derived from computers may be received in the same way as business records, very much in the same way as in this Bill—in Clause 4 and other parts of it—it is being made much easier simply to produce a business record as such and to leave it at that, subject always, of course, to its being challenged and subject to the supervision of the judge. So I would hope that, before long, once this has got going and is understood, we should be able to substitute a much simpler provision, simply saying that evidence derived directly or indirectly from computers in the form of information should be acceptable in the courts. That is the first point.

The second point which I should like to raise on this clause relates to the definition of "computer", on which I have had some very helpful correspondence with the Department of the noble and learned Lord the Lord Chancellor. I should be very grateful if he would perhaps indicate that he still considers that the existing definition is satisfactory. It is in Clause 5(5). The point on which I still feel a little doubt is whether the expression "for storing and processing information" is right, because according to advice I have received the important character and feature of these devices lies more in the processing than in the storing. Indeed, one is often told that one should not refer to computers at all, although it is a convenient and popular expression; that if one wants to be accurate one should refer to "data processing devices" rather than to "computer devices".

A great many business firms, as I understand it, use a computer or a data processing machine simply for processing. One has files or cards, and the device takes the files, goes through them, works upon the information in them, and produces a result—sometimes erasing, as the noble Viscount said, what is actually in the files. But the point is that no separate process of storing is carried out. I should like reassurance, if that is possible, that this expression "storing and processing" does not introduce a superfluous element into the definition.

The third point—I do not know whether the noble and learned Lord can give us information about this; I regret that I have not given him notice of the point, and he may wish to consider it, but it would seem to be of some importance—is whether Clause 5 applies to foreign computers, or computers outside this country. If one looks at Clause 20 of the Bill, it is said that this Bill is not to extend to Scotland or to Northern Ireland, and there are reasons given for that. One would think it certainly desirable that, as regards proceedings in English courts, it should be possible for businesses in Scotland to provide evidence through a computer. I should think that was desirable also in relation to American businesses or Continental businesses. But whether that is possible under this clause, I confess I do not know. If it is, it may be that some special provision may have to be made when it comes to making the rules of court for giving effect to it. But it would seem to be necessary to be clear one way or the other whether this is limited to the device in this country or whether it would apply to devices wherever they come from. I should be grateful if the noble and learned Lord could give us any information on that point.

THE LORD CHANCELLOR

On the first point, I would entirely agree that the simpler the thing the better it is. It is a little more complicated than perhaps I should have liked. We shall have, I suppose, to try it and see. This is one of the reasons why I am against trying to deal with matters of discovery in the Bill. It is our habit in matters of procedure to be pragmatic. We try something; and we see how it actually works.

With regard to foreign computers, I do not think there is anything in the Bill which makes it inapplicable to a foreign computer; but I have not had occasion to consider that before, and if I may I will. As to storing and processing, I am informed that the difficulty is that if you say "storing" this would apply to every file, and if you say "processing" it would include typewriters. You would then have a clause which would apply to a great many things which are not computers at all. I will look into the point raised by the noble and learned Lord, Lord Wilberforce, as to a computer which takes a file and extracts information from it. I will certainly consider this point again. As I am at present advised, the difficulty about saying "storing or processing" is that you would have a section in an Act which applies to a good many things which are not computers at all.

Clause 5 agreed to.

Clauses 6 and 7 agreed to.

Clause 8:

Rules of Court

8.—

(2) Rules of court made in pursuance of subsection (1) above shall in particular, subject to such exceptions (if any) as may be provided for in the rules— (a) require a party to any civil proceedings who desires to give in evidence any such statement as is mentioned in that subsection to give to every other party to the proceedings such notice of his desire to do so and such particulars of or relating to the statement as may be specified in the rules, including particulars of any person who was in any manner so specified connected with the making, recording or production of the statement; and

VISCOUNT COLVILLE OF CULROSS moved to add to subsection (2)(a), "or with the processing of the information upon which the statement is based". The noble Viscount said: I am not surprised that, in the course of dealing with my points on discovery, the noble and learned Lord (as indeed I did myself) forgot the general point that I was making about the double rule making powers under Clauses 5 and 8. But the matter turns up again in relation to this Amendment. I can see that if you look at Clause 8(2),(a) and try to envisage what is the proper notice, and later counter-notice, procedure to make, if you leave out computers altogether you have here a very reasonable statement of principles on which the rules ought to go. But the moment that you complicate the matter by including within this subsection, and within the general principle on which the rule-making body has to go, the whole concept of the notice system for hearsay consisting of computerised evidence, I think there is room for doubt whether the paragraph is drawn widely enough.

What is being done here is to say that rules of court shall be made to require a party who wants to give his hearsay evidence to give notice to the other side and to give certain particulars. Those particulars are to be specified and they can include particulars of any person who was, in any matter specified in the rules, connected with the making, recording or production of the statement. The statement, if we are dealing with a computer case, going back to Clause 5(1), is contained in a document. Then if we look at Clause 10, the document is the printout of the computer. So we have here somebody who is involved in the making, the recording or the production of the final statement.

In the case of computerised evidence I do not think that goes far enough. The noble and learned Lord himself said yesterday, when he was dealing with computers in an entirely different field, where they were identifying objects in space, that he would not like to guarantee that they were always infallible. Well, they are not. There are at least two sources of fallibility in computers, one of them being a matter of mechanical error and the other a matter of human error. If you wish to pin-point the mechanical error, you may have to do it in the way that we have already discussed. If you wish to deal with the human error, then there is not only the person in charge of the machine—I suppose he would be the proper person of whom notice would be given in accordance with this paragraph—at the time that the document which is actually going to be used in the court is produced; it is also very relevant to know what his predecessor did; because the man in charge of the computer when it actually produces the evidence may have been there for only two days. It may be that for the whole of the time when the information was being fed into the computer which built up the statement that is finally taken out, the computer was in the charge of somebody else. It is that other person who is going to know whether somebody has come down and fed some bogus programme into the computer or has fiddled about with it so as to falsify it.

If you draw the rules in accordance with this paragraph, it may be—and I want to protect this situation—that they will not be wide enough for the rule-making body to ensure that when a person puts forward his computerised evidence he also gives notice of, at any rate, a reasonable selection of the people who have been in charge of the computer during the whole of the relevant period—not just at the time when the document came out, but during all the previous period. They may not have to be called, but it is important that the person who is to cross-examine on this evidence should be able to have the opportunity to check back on its accuracy. As I said on Second Reading, he cannot call a witness and cross-examine him, even if he finds out who was the previous person in charge of the computer. He can subpoena him; but then he is his own witness, and he cannot cross-examine him unless he gets a ruling that the man is hostile.

What is required here is sufficient breadth—I do not think it need be spelled out in the Bill; I am sure that we shall be empirical about it—in the rule-making provisions to enable the rules to cover the sort of thing that I have been talking about. There are two ways of doing it: either to make sure by broadening this paragraph or—and this may be better—leave out the reference to Clause 5 in Clause 8 and in Clause 6, and leave the thing to be done by special computer rules made under Clause 5. At any rate, I believe that there is here a practical problem to be dealt with. I beg to move.

Amendment moved— Page 7, line 44, after ("statement") insert the said words.—(Viscount Colville of Culross.)

LORD AIREDALE

I support this Amendment. Surely the difficulty that one is up against with computers is that if you ask a computer a silly question you get a silly answer, but you may not know it. If you have an intelligent witness in the witness box and you ask a silly question, his answer will probably show up the silliness of the question. It is very important, therefore, when you are working with computers, to be quite sure that the person feeding the information into the computer was not subject at that moment to some human failing which will lead the computer to produce an inaccurate answer which nobody is going to be able easily to discover—because there is no apparent different in the behaviour of a computer when it produces a stupid answer from when it produces a sensible one. That seems to me of importance here. It is very important indeed not only to know as is stated in Clause 5(1)(a), that the computer was operated properly at the time, but to know that the person who fed information into it was operating properly at the time. That is what I think we have to guard against and why it is important to know about the people who fed the information in and who were operating the computer before the information eventually emerged.

7.50 p.m.

THE LORD CHANCELLOR

I have no real objection to this in principle. I am still a little hesitant about making things too complicated, and with reference to the observations of the noble Lord, Lord Airedale, I think that we ought to remember two things. One is, as I understand, that it is infinitely more difficult to forge a computer record than any ordinary ledger because there has to be several people in it at the same time. Secondly, while, of course, computers can make mistakes, business firms do not spend tens or hundreds of thousands on a machine which is not accurate; therefore there is much less reason why they should be. It is only that we are new to computers and they all sound frightfully complicated, as indeed they may be. No doubt when a firm gets its first computer something may well go wrong, but in general it is much less culpable and there is much less need to check a computer than almost any other form of record.

But I agree with the general proposition that the people responsible for translating the original information into computer language ought to be included. It is, however, for consideration whether Clause 8(2)(a) as drafted does not meet the point made by the noble Viscount, because "production of the statement" is a phrase wide enough to cover everything from the initial supplying of the information to the final print-out. I would invite the noble Viscount to consider that, and to withdraw his Amendment on the undertaking that we can both consider whether any express additional words are needed. If they are, then an Amendment, either in this form or some modified form, can be put down again on Report stage.

VISCOUNT COLVILLE OF CULROSS

Would the noble and learned Lord also like to deal with my point about taking out altogether from Clauses 6 and 8 the references to Clause 5, and leaving it for general powers to make rules under Clause 5 itself?

THE LORD CHANCELLOR

Could I consider that at the same time?

VISCOUNT COLVILLE OF CULROSS

I entirely agree with that approach. I should like to consider it too, but I think that what I am asking for is reasonable. I am not asking for any complication; I specifically do not want that. All I am asking is that the rule-making powers should not be so restricted by some words which unfortunately do not wholly apply to computer worlds that we shall find that we cannot cover it without amending legislation. I am only asking that that situation should be safeguarded. If the noble and learned Lord will look at it in that way, I will gladly ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (2)(b), to leave out "cannot reasonably" and insert "is shown not to be able reasonably to be". The noble Viscount said: This is a similar point. I know very well that the words in paragraph (b) are taken out of, I think, the Criminal Evidence Act 1965 and that they were put in because of difficulties which arose in a case called Meyers v. The Director of Public Prosecutions. But again I am dubious whether they are altogether right in the very special context of computers. This is another instance where it may well be that the noble and learned Lord the Lord Chancellor, will find it is better to have a special computer rule-making clause all by itself, and leave the ordinary situations with which this Bill deals to be governed by the same rules as appear in the 1965 Act. It is for consideration.

The difficulty, I think, is this: in this very special computer context all that the person who does not wish to have his computer manager appear at the court has to say is, "This was one of an enormous number of very small transactions which either are done as a matter of course and routine, and nobody could be expected to remember them at all, or else there is nobody who does them at all; the whole thing is completely automatic; and I have nobody in my employ who will be able to help you about the process whereby a particular entry in which you are interested got into the computer's information system".

I can easily imagine that this would in fact be so. But what one is going to ask for, I suspect, if one wishes to challenge the accuracy of the computer print-out, is not necessarily for somebody who has a specific memory of a specific punch card that was put into it some day eighteen months or seven years before the case, but somebody who was in charge of the operation of the computer, as the noble and learned Lord himself said, at the relevant period. It is the method by which the programing and the coding is done and the information fed into the machine which is relevant here, just as much as an exact memory of the specific occasion upon which the data accrued or when it was actually registered in the inside of the computer. Therefore I do not think that the exact wording of the Criminal Evidence Act 1965 is apt for this special context.

If the other party, the computerised party, wishes to be difficult, or wishes actually to suppress the fact that there has been something wrong in the operation of his computer, he can perfectly well say under this formula, "Yes, I have a manager, he was there at the time, but there is no reason to suppose that he can remember anything about this particular transaction". And who is going to be able to disprove it? The whole system of this paragraph, so far as I can see, makes this counter-notice more or less conclusive. What I am asking for, at any rate in this sort of case, is that the person should be produced unless it can be shown by the person who wishes not to produce him that there is some reason why he should not come. I do not know whether that is the right way to do it; it may be better to have a special rule for computers; but at any rate I think it is another point for consideration, and I beg to move.

Amendment moved— Page 8, line 8, leave out ("cannot reasonably") and insert ("is shown not to be able reasonably to be").—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

I should have thought that this Amendment was unnecessary, because the wording of Clause 8(2)(b) is unambiguous as it stands. It follows exactly the Criminal Evidence Act 1965 and it already places the burden on the party who wishes to show that the witness either is unavailable or cannot be expected to remember the relevant events. If it is desired to insist at the interlocutory stage on evidence being given to show that the person concerned cannot reasonably be expected to remember the relevant facts, Clause 8(2)(b) as drafted would enable rules to be made for this purpose.

VISOUNT COLVILLE OF CULROSS

I am sorry to interrupt the noble and learned Lord, and I think that may well be so, but I am saying that the test is wrong. The proper test in this case is not just that a person should not reasonably be expected to remember facts; he should be, and may properly be, expected to remember the situation or the general orders which he was given. He may not remember the facts, but it may be highly relevant that he should remember the exact situation.

THE LORD CHANCELLOR

I feel that we are making it ever more and more complicated. I am quite prepared to consider this point, but I should not have thought that on the wording of Clause 8(2)(b) as it stands any Amendment was really necessary.

VISCOUNT COLVILLE OF CULROSS

I hope that the noble and learned Lord will take this point into account when he does what he says and considers whether we should take computers out of Clause 8 altogether. Perhaps when the noble and learned Lord reads what I have said it may occur to him that I am not just splitting a hair about this matter and that there is a certain amount of substance in what I am saying: that this is not the right test when it comes to people remembering about computers. If that is so, something may have been gained. I hope that I may leave it to the noble and learned Lord at the moment to consider, and meanwhile I beg leave to withdraw—

LORD AIREDALE

Before the noble Viscount moves to withdraw the Amendment, may I suggest that the sort of question you want to ask a person feeding information into the computer is, "When you fed the information in, did you remember that the year 1956 was a leap year?", because if that is forgotten, every single one of the computer's calculations for 1956 will be wrong. That is the sort of thing we want the witness to be sure of when he is asked whether he fed proper information into the machine.

THE LORD CHANCELLOR

I think that if he did that, he would not be there any longer.

LORD AIREDALE

This is a case that happened. Someone forgot that a certain year was a leap year and the whole of the calculations were completely wrong.

VISCOUNT BARRINGTON

Am I right in saying that an answer may be extremely accurate but at the same time may be misleading and silly even, unless the question is explained to the computer? To take an example, if there was a question of the number of white men, it would have to be explained to the computer that a "white man" does not mean a white man. A computer to which it had not been explained that it meant pinkish-brown, would give an extremely inaccurate answer. It may be a frivolous example, but it is one somebody might be more likely to overlook. It must be very complicated.

VISCOUNT COLVILLE OF CULROSS

I think that, nevertheless, I will beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Admissibility of certain hearsay evidence formerly admissible at common law]:

THE LORD CHANCELLOR

This Amendment is consequential on the omission of Clause 1(2). I beg to move.

Amendment moved—

Page 10, line 35, leave out from beginning to ("it") in line 36.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Interpretation of Part I, and application to arbitrations, etc.]:

THE LORD CHANCELLOR

If I may I will discuss this Amendment and Nos. 9 and 12, which go together. The purpose of these three Amendments is to make the wording of paragraph (d), and of references to that paragraph elsewhere in the subsection, reflect more clearly the fact that paragraph (d) covers not only cinematograph films and videotapes but also microfilms and other "still" negatives. The first Amendment makes it clear that paragraph (d), as distinct from (b), is not concerned with photographic prints, which are intended to be looked at in their existing form, but with devices from which readily intelligible pictures can be reproduced. The two linked Amendments reflect the fact that a "paragraph (d) document" may embody either a single visual image (that is to say, a microfilm or other "still" negative) or several such images (that is to say, a cinematograph film of videotape). Hence, the first of these Amendments makes paragraph (d) refer to a device embodying "one or more" visual images, and the second Amendment makes the definition of a copy of such a document include a "reproduction or still reproduction", since "still reproduction" is not a felicitous phrase when one wants to refer to a print of a microfilm or other "still" negative. I beg to move.

Amendment moved— Page 11, line 11, after ("film") insert (", negative").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

This is one of the Amendments the noble and learned Lord promised to make to Clause 10. I should not be greatly surprised if other Amendments to this extremely difficult definition were to turn up in the course of the passage of the Bill through Parliament. I am sure that this is a good series, and I welcome it.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a drafting Amendment, the second of those to which I have just referred. I beg to move.

Amendment moved—

Page 11, line 11, after ("which") insert ("one or more").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is linked with the Amendment to Clause 10, page 11, line 18, "leave out ('only') and insert ('but not (c)')". These Amendments cure a minor drafting defect in Clause 10(1), which results from the definition of "copy" being made dependent, in appropriate cases, on whether the relevant document falls within paragraph (c) or paragraph (d) of the definition of "document". These definitions are intended to deal separately with first, "audible" documents, of which transcripts of the sounds are copies; secondly, films and video-tapes, of which still prints are copies; and, thirdly, combined films, etc., and sound tracks, of which transcripts together with still prints are copies. It is, however, possible that a document which fell within paragraph (d) might also fall within paragraph (b) (photographs); a reproduction of the image embodied in such a document ought to be a "copy" and it is therefore more accurate to speak of such a document as "falling within paragraph (d) but not (c)" rather than as "falling within paragraph (d) only". The second of these two Amendments does this and, for the sake of consistency, the first Amendment makes a corresponding change in the definition of copies of "audible" documents. I beg to move.

Amendment moved—

Page 11, line 16, leave out ("only") and insert ("but not (d)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the second of the two Amendments to which I have just referred. I beg to move.

Amendment moved—

Page 11, line 18, leave out ("only") and insert ("but not (c)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This follows on Amendment No. 8. I beg to move.

Amendment moved—

Page 11, line 19, leave out ("still reproduction of the") and insert ("reproduction or still reproduction of the image or").—(The Lord Chancellor.)

On Question, Amendment agreed to.

8.7 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1)(d), after "not" to insert "or, if the image or images can be interpreted only when reduced into words or figures, a transcript thereof". The noble Viscount said: This Amendment relates to a point I raised on Second Reading. When the noble and learned Lord the Lord Chancellor wrote to me about it, he said, not altogether surprisingly, that he was not sure what I had been talking about, and I am not sure that I know now. But still I wish to ask him a question.

I believe that there is a method of computerisation which is called electronic beam recording. I have not had an opportunity to find out exactly what it does. It may be that this succeeds in reproducing upon a microfilm an exact reproduction of a document, so that when the relevant pieces of the microfilm are reproduced the document can be read. On the other hand, it may be that what it does is to break down words into some sort of light impulses which are then put upon a film which can eventually be turned back into language. A television cathode ray bombards a screen with a series of dots. It may be that this does the same sort of thing. If it does, the production of a recording is not immediately readable or intelligible when it comes out at the end. Although it is within paragraph (d) and it is one of the visual types, it would not be any use to produce a copy of the microfilm. It would have to be translated back into the sort of language from which the original process had transformed it.

Whether or not I am right in supposing that the latter is what the electronic beam recording does, it seems to me possible that there will be invented during the lifetime of this Bill some process which will use a form of visual image or impact or impression in such a way that we shall not be able to understand it from the film or print of that process alone without further interpretation of the message it is trying to put over; and unless we do something to expand the definition in Clause 10, I believe that we may be left with a case in which some incredibly complicated and efficient new type of computer cannot be used in court because the Civil Evidence Act 1968 does not contain a definition wide enough for it. There are two possibilities here: either it exists now or in the future. In either case, I admit that I have not drafted my Amendment correctly. But, at any rate, I hope that the noble and learned Lord saw before this debate what I was getting at and can give me some sort of answer. I beg to move.

Amendment moved— Page 11, line 20, after ("not") insert the said words.—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

I gather the sort of thing that the noble and learned Viscount has in mind, and I should really like to consult my experts on electronic beam recording. I think that an Amendment is not really necessary, because it seems to me that the sort of thing that the noble Viscount has in mind would fall within Clause 10(1)(c), not paragraph (d), because the "data" embodied are "non visual": the marks (whether punctured holes or other devices) may be visible, but the "data" are not apparent to the eye. As long as the document is within paragraph (c) a transcript would be within the definition of "copy". I should, however, like to consider it. These are difficult matters. The noble Viscount may like to consider what I have said to see whether it makes sense, and, if I may, I will consider the matter again and take further advice.

VISCOUNT COLVILLE OF CULROSS

The last thing that I should wish to suggest is that anything that the noble and learned Lord says does not make sense. But I did consider this carefully to see whether I thought a machine of the type I am talking about fell within paragraph (c). It is quite true that if you interpret the words "non-visual" in one way it may be so, but I should have thought it much more natural to say that something which appeared as perhaps a row of dots on a microfilm was visual. After all, you see it. It is, as are all the other things in paragraph (d), of the type of film, a microfilm, which is in the visual department of this definition. Although I have no doubt that the courts would manage to worm their way round the difficulty somehow, it seems to me to be so much better not to have litigation about whether this particular type of computer produces a document within Clause 10 of this Bill when it becomes law. It would be much better to try to get a definition a little wider at this stage in order to avoid all that trouble. I am glad the noble and learned Lord will do as he said; I will certainly do the same, and perhaps we can come back to the point on a later occasion. Meanwhile, I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved in subsection 1(d), after "enlarged or not," to delete "and". The noble and learned Lord said: This Amendment is a little more complicated. It is a paving Amendment anticipating the Amendment to Clause 10, page 11, line 22. These Amendments make it clear that a party who has microfilmed an original written document can, subject al ways to authentication in a manner approved by the court, prove a statement contained in that document by producing not the microfilm itself but an enlarged reproduction made from it. This is an important point, because one of the main objects of the wide definition of "copy" in Clause 10(1) is to enable free use to be made of microfilm enlargements.

In most cases a microfilm will itself constitute a record within the meaning of Clause 4 and will therefore be admissible under that clause to prove a statement contained in it. It would follow that an enlargement of the microfilm would be a "copy" within Clause 10(1), as now drafted, and therefore admissible by virtue of Clause 6(1) to prove the statement. But this will not always be the case; if the microfilm does not constitute a "record" within Clause 4, then it is doubtful whether Clauses 6(1) and 10(1) would permit a statement contained in the original written document to be proved by the production of an enlargement from the microfilm. It is true that the microfilm itself would be a "copy" of the original written document, but the enlargement would be a copy of a copy of that original and the Bill does not permit proof by production of a copy of a copy. In the case of a microfilm, this would be most inconvenient since the microfilm itself is not easily legible and to require its production would be both tiresome and unhelpful. What is needed is a provision enabling the enlargement to be produced in court.

The Amendments achieve this object. Their effect is that where a document which is not itself a film, et cetera, has been filmed (and this includes microfilmed) then a reproduction, whether enlarged or not, of the images embodied in the film is included in the definition of a "copy" of the original document. I have for some time felt that I should have gone to a computer school for at least a month before introducing this Bill. I beg to move.

Amendment moved— Page 11, line 20, leave out ("and").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

If these two Amendments will achieve that object it seems to me to be a work of veritable genius. I do not understand in detail what the noble and learned Lord has said, but I shall be very interested indeed to read it in the morning.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the Amendment that is linked to the last one. I beg to move.

Amendment moved—

Page 11, line 22, at end insert ("and in the case of a document not falling within the said paragraph (d) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11:

Convictions as evidence in civil proceedings

11.—(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed the conduct on which the conviction was based, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), to leave out "or by a court-martial there or elsewhere". The noble Viscount said: It may be with a sigh of relief that the Committee can leave the subject of computers and, indeed, Part I of the Bill. I have now set down to Clause 11 and Clause 13 a number of Amendments which are really all on the same point, although I think they have slightly different emphasis in the two different clauses, to draw attention to, and to seek some explanation from the noble and learned Lord about, the other respect in which this Bill differs from the Law Reform Committee's recommendation.

It will be recalled that in paragraph 18 of their Report (Cmnd. 3391) and the rule in Hollington and Hewthorne they recommended—and again it was a matter of balance of judgment—that the provisions about the admissibility of previous convictions should apply when the conviction was before a court, but not when it was before a court-martial or before a foreign court. The Bill, of course, says that if the conviction is subsisting it is admissible. The noble and learned Lord has a little difference, I think, to make now—it is not going to be admissible if the conduct upon which it was based under his Amendments to come are the fact—but I do not think that it makes any appreciable difference for this purpose. It is going to be evidence of those facts in a subsequent civil proceeding. The Committee said that they did not consider that a conviction before a foreign court should be susceptible of this treatment, and that in those circumstances a person who wishes to prove the facts would have to start all over again without being able to rely on foreign conviction.

Then there comes the difficulty of the court-martial, and in this the Government have reversed the balance of judgment to which the Law Reform Committee came. I think that before the Committee is invited to accept this change I should like to ask the noble and learned Lord a little about the reasons which underlie the Law Reform Committee's own balanced judgment on the matter. What they said was that they were not imputing anything against courts-martial; they were not saying there was anything wrong with courts-martial. There were two reasons. First of all, courts-martial in this country do not as a rule involve the sort of cases which are liable to lead to a tort or a contract action afterwards; they chiefly deal with military offences in whichever Service they occur. Then they say that when courts-martial take place abroad they are done under English rules of law, but it is perfectly possible that there it will in fact concern a matter and concern facts which could be the subject, possibly, of a future civil action in this country. But they then say that what their draft Bill provides would lay an unreasonable burden upon the defendant.

The defendant would, if the Bill is to apply to courts-martial as well as to convictions in front of an ordinary court in this country, have the burden of disproving the conviction. His opponent would simply have to put up the conviction in front of the court-martial and that would be admissible as evidence of the facts, unless the defendant could prove that that conviction was wrong and the facts did not lead to that conclusion. In order to be able to do so he would very likely have to go abroad and collect a number of witnesses to enable him to discharge that onus of proof. I think it was for that reason, so far as courts-martial abroad are concerned, that the Committee came to the view that it should be for the plaintiff to bring all the evidence he wished to satisfy the court and prove his case, and not for the defendant to show that it did not.

There must have been some consideration in the minds of Her Majesty's Government which led them to abandon this balance of judgment. Perhaps the Law Reform Committee were wrong about the number of offences upon which civil actions could take place which were dealt with by courts-martial in this country. Perhaps they were wrong about the difficulties of obtaining witnesses, but I do not think we should leave this matter as it is.

I wish to say only one other thing. I do not believe that necessarily quite the same considerations apply to the defamation situation dealt with in Clause 13. It seems to me to be possible, although perhaps not very logical, to leave courts-martial out of Clause 11 but still to say that so far as Clause 13 is concerned they will be conclusive. As I understand Clause 13, in any event it will not be possible for the defendant to disprove the conviction, and therefore the practical difficulty about bringing witnesses back from abroad does not arise. But I think that perhaps it would be better to consider the two together rather than separately. I shall be grateful if the noble and learned Lord the Lord Chancellor can deal with the main proposition, and then mention the case of defamation. I beg to move.

Amendment moved— Page 12, line 6, leave out ("or by a court-martial there or elsewhere").—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

I think it would be difficult to split the thing in two. I am sorry that the noble and learned Lord, Lord Pearson, is no longer here, because we are dealing with one of the only points on which this Bill differs from the recommendations of his Committee. The only grounds on which the Committee said they came to their conclusion were, first, that in the United Kingdom courts-martial are mainly confined to the trial of offences against military law, which would really involve only the same issues as civil actions; and so far as courts-martial abroad are concerned they were influenced by the practical difficulty confronting a party who wished to challenge a conviction but could only do so if given an opportunity to cross-examine the witnesses who gave evidence.

No doubt these are weighty arguments, but against them it may be urged, as the Committee themselves recognised, that courts-martial are as reliable as other criminal courts, and in the opinion of many people are even more favourable to the accused—certainly in the facilities for reviewing a court-martial conviction, either on appeal or through Service machinery, because the sentence has to be confirmed and the proceedings reviewed at that point, and then later one can go to the Courts-Martial Appeal Courts.

Secondly, there is an important difference between courts-martial, whether sitting at home or abroad, and foreign courts, in that the former apply English law, and in particular follow the English rules of evidence. Thirdly, I think the Law Reform Committee may well have underestimated the proportion of trials by court-martial in the United Kingdom for what are offences against the ordinary criminal law. Usually, in fact, when some question arises nearly all the witnesses are back in this country, and it is always easy for the Services to bring people home, but the Committee—I hesitate to say this in the absence of the noble and learned Lord, Lord Pearson—when they said that there are very few civil cases, they are nearly all criminal cases, I rather believe were thinking of their own experiences.

VISCOUNT COLVILLE OF CULROSS

Surely the noble and learned Lord must mean "military" rather than "general criminal"?

THE LORD CHANCELLOR

Yes, I mean that. But it may be the Committee were relying on their own recollection of Service days or of Judge Advocates during the war, because actually last year there were altogether under 3,000 courts-martial, and over 1,100 of them were civil cases.

VISCOUNT COLVILLE OF CULROSS

But, with great respect to the noble and learned Lord, they cannot have been civil cases.

THE LORD CHANCELLOR

Yes, I do mean civil cases—well, not courts-martial, but for civil offences.

LORD AIREDALE

I think the noble and learned Lord means non-military criminal offences.

THE LORD CHANCELLOR

I am much obliged to the noble Lord. But this is an entirely different picture from that which the Committee had. So, taking all those things into account, we decided in this way—allowing for the fact that the Services made it plain that they regarded it as a great slight on courts-martial that they were treated differently.

VISCOUNT COLVILLE OF CULROSS

I am grateful to the noble and learned Lord for that. I have no doubt that the noble and learned Lord, Lord Pearson, will read what he has said in Hansard and will be able, if he wishes to do so, to comment on it later. Could the Lord Chancellor just tell me this. Has he any sort of breakdown of the nonmilitary criminal offences which were committed and were tried by courts-martial in the list that he has mentioned? I would not have any idea what sort these are—whether they are the sort that would be likely to give rise to civil liability, or whether they would be the sort of non-military criminal offences which do not really affect the issue.

THE LORD CHANCELLOR

I have the breakdown of the figures of the last two years for the Navy, the Army and the Air Force, but I have no list of the actual offences. I have no doubt I could obtain it and I will write to the noble Viscount and let him have that information.

VISCOUNT COLVILLE OF CULROSS

I would be very much obliged to the noble and learned Lord, and I should like to study that. Meanwhile, I beg to withdraw this Amendment.

Amendment, by leave, withdrawn.

8.28 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "whether he was so convicted upon a plea of guilty or otherwise and," and insert "that offence". The noble and learned Lord said: This is the last really complicated Amendment and it is rather tedious because it is all a question of terminology. One hesitated to differ very much on any point from the clauses put forward by the Committee, but the phrase "committing the conduct" has been found very complicated, and this is an attempt to get rid of it.

Perhaps I may take this Amendment together with Amendments 19 and 20. Their object is twofold. In the first place, they are intended to improve the language of the Bill, first by getting rid of the rather cumbrous expression "committed the conduct" and thus enabling the definition of "conduct" in Clause 18(2) to be omitted; and, secondly, by enabling a latent ambiguity in Clause 12 to be resolved while keeping the language used in Clause 11 in step with that used in Clause 12 as proposed to be amended.

The substance of the Law Reform Committee's recommendation on which Clause 11(1) is based is that proof of a previous conviction should be evidence of the convicted person's guilt. The natural way of giving effect to the recommendation would be to provide that the fact that a person has been convicted of an offence .. shall be admissible in evidence for the purpose of proving … that he committed that offence …"— which is what Clause 11(1) will provide if the Amendment to subsection (1) is made. As drafted, Clause 11(1), following the draft clauses annexed to the Committee's Report, makes the conviction admissible to prove that the person concerned "committed the conduct on which the conviction was based".

The reason for using this expression is that in many cases—for example, "running down actions" following the defendant's conviction of a driving offence—it is the defendant's bad driving that is relevant, not whether it was correctly adjudged by the criminal court to amount to "dangerous" or "careless" driving. The defendant should not be able to avoid the effect of Clause 11 by arguing successfully in the civil action that the magistrates should have convicted him of "careless" and not "dangerous" driving, when the issue in the civil action is whether he was negligent because he drove too fast. The use of "committed the conduct" was intended to avoid this possibility. But in practice it would not exist; if the conviction were, as is proposed, made evidence that the defendant committed the offence of dangerous driving, he would, to displace the evidential effect of the conviction, have to "prove the contrary"—that is, that he was not guilty of dangerous driving—by virtue of Clause 11(2), and this he could in practice do only by calling direct evidence of what happened.

Moreover, as drafted, Clause 11(1) may be difficult to apply where the criminal conviction could have been based on a finding that any one or more of a number of incidents was proved. If, for example, A is convicted of having assaulted B at a given time and place, B may have given evidence that A struck him a number of blows, one of which did serious injury for which a civil action is subsequently brought. A may, in the criminal proceedings, have admitted striking B but deny having struck the blow which did the injury. In such a situation, unless the criminal court's decision clearly shows precisely what the court found proved, it may be difficult to show precisely what aspect of A's conduct was the basis of the conviction. To provide, therefore, that the conviction is to be evidence that A "commited the conduct on which it was based" may be asking Clause 11(1) to do more than it can reasonably be expected to do.

Accordingly, even if Clause 11 is considered by itself, there are persuasive arguments for abandoning "committed the conduct on which the conviction was based" in favour of "committed that offence". But the same arguments are still more powerful when applied to the analogous provisions in Clause 12. There a finding of adultery or an adjudication of paternity is made evidence that the person concerned "committed the conduct on which the finding or adjudication was based". So long as the subsequent proceedings are concerned only with proof of an act of adultery, this expression (though not very elegant) achieves its purpose. But it is not at all clear that it makes an adjudication of paternity evidence of the fact of paternity, and this ambiguity is brought out in Clause 12(2)(b), which makes certain documents admissible to identify the "conduct on which the finding or adjudication was based". One cannot identify an act of paternity. It is therefore in any event desirable to amend Clause 12 to resolve this ambiguity by providing in terms that a finding of adultery or adjudication of paternity is to be admissible as evidence that the person concerned committed the adultery to which the finding relates or was the father of the child in question. This is done by the Amendments to Clause 12. "Committed the conduct" cannot be retained for Clause 12, and this fact strengthens the argument for substituting a more readily understood and less cumbersome expression in Clause 11.

A further advantage of the Amendments is that they enable the definition of "conduct" in Clause 18(2) to be omitted. The object of this definition was to avoid any possibility of "conduct" being construed as excluding any relevant mental element in relation to a criminal offence. If Clause 11(1) is, as is proposed, to refer to the commission of an offence, it will necessarily connote the relevant mental element. I beg to move.

Amendment moved— Page 12, line 9, leave out from ("committed") to ("whether'') in line 10 and insert ("that offence").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

I think it is very valuable to have a full explanation of the reasons why the Government wish in this respect to depart from the drafting of the Committee's little Bill at the back of their Report. I find the argument wholly convincing. It is much more subtle than anything I should have thought of, but it sounds to me right and I would support it.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential on No. 17. I beg to move.

Amendment moved—

Page 12, line 18, leave out from ("committed") to end of line 19 and insert ("that offence unless")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is also consequential on No. 17. I beg to move.

Amendment moved— Page 12, line 22, leave out ("conduct") and insert ("facts").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

There are a number of Amendments which the noble and learned Lord has on this point. I recognise them as all being the same. I do not know whether it would be permissible to put them en bloc.

THE LORD CHANCELLOR

Those were the ones, Nos. 17, 19 and 20.

On Question, Amendment agreed to.

8.35 p.m.

THE LORD CHANCELLOR moved after subsection (3), to insert: (3A) Where in any civil proceedings the contents of any document are admissible in evidence by virtue of subsection (2) above, a copy of that document, or of the material part thereof, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown.

The noble and learned Lord said: This Amendment enables a properly authenticated copy of a complaint, information, and so on, to be put in evidence for the purpose of identifying the facts on which a criminal conviction was based. The Amendment is necessary because without it it might be difficult for a party seeking to rely on a previous conviction to identify the relevant facts. Proof of the conviction itself presents no difficulty, because under current legislation a conviction before a court in any part of the United Kingdom can be proved by a certificate signed by the appropriate officer of the court. But the relevant enactments do not apply to the documents which initiate criminal proceedings, and to obtain the originals might be inconvenient or even impossible. A criminal court might well be unwilling to release its original records, particularly for the purpose of a civil action in another part of the United Kingdom, but there can be no objection to a properly authenticated copy being made available and admitted in evidence. The wording of the Amendment is based on paragraphs 12 and 13 of Schedule 1 to the Land Commission Act 1967. I beg to move.

Amendment moved—

Page 12, line 33, at end insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12:

Findings of adultery and paternity as evidence in civil proceedings.

12.—

(2) In any civil proceedings in which by virtue of this section a person is proved to have been found guilty of adultery as mentioned in subsection (1)(a) above or to have been adjudged to be the father of a child as mentioned in subsection (1)(b) above—

1. (a) he shall be taken to have committed the conduct on which the finding or adjudication was based, except in so far as the contrary is proved; and
2. (b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the conduct on which the finding or adjudication was based—
   1. (i) in a case falling within subsection (1)(a) above, the contents of the petition or summons presented, and of any decree or order made, in the matrimonial proceedings in question, and the judgment of the court therein, shall be admissible in evidence for that purpose; and
   2. (ii) in a case falling within subsection (1)(b) above, the contents of the complaint, summons or writ and of any order made in the affiliation proceedings in question shall be admissible in evidence for that purpose.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "conduct on which the finding or adjudication was based", and insert: adultery to which the finding relates or, as the case may be, is (or was) the father of that child".

The noble and learned Lord said: This drafting Amendment is linked with two other drafting Amendments, Nos. 24 and 25, and it resolves the ambiguity latent in the words "committed the conduct" in Clause 12(1), whose purpose I have explained. Perhaps these Amendments could be put en bloc.

Amendments moved—

Page 13, line 24, leave out from ("the") to ("whether") in line 25, and insert the said new words.

Page 13, line 35, leave out from ("the") to ("the") in line 37, and insert ("adultery to which the finding relates or, as the case may be, to be (or have been) the father of that child, unless").

Page 13, line 40, leave out ("conduct") and insert ("facts")—(The Lord Chancellor.)

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved, in subsection (2) to leave out subparagraphs (i) and (ii), and insert: the contents of any document which was before the court, or which contains any pronouncement of the court, in the matrimonial or affiliation proceedings in question shall be admissible in evidence for that purpose.

The noble and learned Lord said: This Amendment substitutes, for the specific classes of documents at present set out in Clause 12(2)(b)(i) and (ii), a general formula providing for the documents connected with the previous matrimonial or affiliation proceedings which are to be admissible for the purpose of identifying the facts on which a finding of adultery or adjudication of paternity was made. As drafted, Clause 12(2)(b)(i) and (ii) make admissible for the purpose of identifying the relevant facts—(a) a petition, summons, decree, order or judgment in a matrimonial cause, and (b) a complaint, summons, writ or order in affiliation proceedings. To cover all relevant documents these formulas would anyhow have to be expanded to cover all the "pleadings" and other documents that might go to form part of the court record in English, Scottish or Northern Irish proceedings. Although it would no doubt be possible to make a complete and exhaustive list of all such documents currently in use, this would not be convenient and would not cater for future procedural changes whereby some entirely new type of document came to be used.

The formula in the Amendment is comprehensive and is intended to avoid these possible inconveniences. It makes admissible any document which was as before the court and any document containing a "pronouncement of the court" this latter phrase is apt to cover both a formal decree or order and a reasoned "judgment" or "opinion"—which is the corresponding Scottish term. The new subsection (3)(a), which is inserted in Clause 12 by the Amendment to Clause 12, will make properly authenticated copies of these documents admissible to prove their contents. I beg to move.

Amendment moved—

Page 13, line 42, leave out from beginning to end of line 7 on page 14 and insert the said new words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

8.40 p.m.

THE LORD CHANCELLOR

This Amendment provides for the use of properly authenticated copies to prove the contents of documents made admissible to identify the facts relevant to a finding of adultery or an adjudication of paternity. The new subsection achieves this in the manner already discussed under Amendment No. 21. I beg to move.

Amendment moved—

Page 14, line II, at end insert— ("( ) Subsection (3A) of section 11 of this Act shall apply for the purposes of this section as if the reference to subsection (2) were a reference to subsection (2) of this section.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in subsection (4), to leave out "in the Court of Session". The noble and learned Lord said: Perhaps I may take Amendments Nos. 28 and 29 together. This is where the noble Viscount will have an advantage over me, because I am in the middle of Scots Law, which I know nothing at all about.

These Amendments bring within the definition of "matrimonial proceedings" for the purposes of Clause 12 consistorial actions in the sheriff court as well as in the Court of Session, but exclude from that definition actions in either court for "non-permanent" alimony. The body of the Report of the Law Reform Committee makes no specific references to findings of adultery made in proceedings in Scotland, but it is evident from the draft clauses annexed to the Report that the Committee were in favour of treating such findings, if made in proceedings in the Court of Session, on a par with such findings made in matrimonial causes in the High Court (or in a county court under the Matrimonial Causes Act 1967). The Committee proposed expressly that their recommendations should not apply to findings of adultery made by magistrates' courts in England for the reasons given in paragraph 36 of the Report; namely, that,

1. (a) in those proceedings an alleged adulterer is not made a party, has no right to take any part and is not always given notice of the complaint, etc., in which adultery is alleged against him; and
2. (b) unlike the High Court trying matrimonial causes, magistrates' courts are under no duty to enquire into the truth of any allegation made.

The sheriff court in Scotland is not the equivalent of a magistrates' court in England. If a consistorial action (that is, an action affecting the status of parties with regard to marriage) is raised in the sheriff court, and an allegation of adultery is made in that action, the alleged adulterer has a right to be added to the proceedings as a party and to contest the allegation. Sheriff court proceedings are, therefore, more akin to matrimonial proceedings in the High Court than to such proceedings in a magistrates' court in England.

A further factor is that the current Law Reform (Miscellaneous Provisions) (Scotland) Bill, which I think has just been introduced in another place, contains provisions corresponding to Clauses 11 to 13 of the Bill. The provision (Clause 11) corresponding to Clause 12 does bring in findings of adultery in consistorial actions whether in the Court of Session or the sheriff court, subject to the exceptions specified in the definition of "consistorial action" in Clause 13(2) of the Scottish Bill, which is reproduced in the second of the Amendments to which I am referring. If, therefore, sheriff court proceedings are not included in Clause 12, the law of England will be out of step with the law of Scotland. Although, therefore, it can be argued that sheriff court findings are not altogether the equivalent of findings made by the High Court or the Court of Session, the advantages of bringing them within Clause 12 appear to outweigh the disadvantages. The first Amendment brings them in by omitting the qualification on the meaning of "consistorial action" imposed by the words "in the Court of Session".

However, it would not be appropriate to bring within Clause 12 every kind of action which may be classified as a "consistorial action" (whether in the Court of Session or the sheriff court) and the corresponding provision in the Scottish Bill (Clause 13(2)) expressly excludes, as does the second Amendment with which I am dealing: an action of aliment only between husband and wife raised in the Court of Session or an action of interim aliment raised in the sheriff court". The need for this exclusion stems from the fact that without it "consistorial action" would be capable of including actions for "non-permanent" aliment: the statutory definition in Section 19 of the Conjugal Rights (Scotland) Amendment Act 1861 does include such actions, although they are not within the definition given in Walker's "Evidence", 1964 edition at page 166.

Actions for aliment fall into two classes: first, actions for "permanent" aliment, which are comparable to proceedings for judicial separation and maintenance and involve a preliminary conclusion for separation or adherence; and, secondly, actions for "non-permanent" aliment, which involve no such conclusion because in theory the aliment is granted only pending the determination of the parties' rights. In the latter class, unlike in the former, a decree may be pronounced although the action has not been substantiated by sufficient evidence. These actions proceed as ordinary actions in the Court of Session or, if the proceedings are in the sheriff court, a decree may be granted in an undefended case without any evidence having been led. Thus, a finding of adultery in such actions may not have been established by the same strict standards of proof as are required in a true consistorial action. Such a finding has therefore no special evidential value and should not come within either Clause 12 or the corresponding provision of the Scottish Bill. Accordingly, the second Amendment expressly excludes these actions. I apologise to the Committee for having dealt with this rather fully; but where one is departing in any case at all from a Report of a body like the Law Reform Committee, I think it right that exactly what we have done should be on record. I beg to move.

Amendment moved— Page 14, line 15, leave out ("in the Court of Session").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

I am grateful to the noble and learned Lord for his explanation. Any alleged advantage that I may have in this matter is in fact non-existent. But although I am quite unable to comment intelligibly upon these two exclusions, which are highly technical matters, I should have thought it no insult to the magistrates' courts and the procedure which governs them South of the Border to say—this is really the principle of the Amendments—that cases before the sheriff courts, where the adultery is in fact proved in the proper way, with the parties all having the opportunity to be there and to dispute it, should be brought within the scope of this admissible evidence. Therefore, I would support this Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the other Amendment I was discussing originally. I beg to move.

Amendment moved—

Page 14, line 16, at end add ("and in this subsection 'consistorial action' does not include an action of aliment only between husband and wife raised in the Court of Session or an action of interim aliment raised in the sheriff court.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 12, as amended, agreed to.

Clause 13 [Conclusions of convictions for purposes of defamation actions]:

THE LORD CHANCELLOR

This Amendment and Amendment No. 31 are again "committing the conduct" Amendments I beg to move.

Amendment moved—

Page 14, line 30, leave out ("conduct") and insert ("facts").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

The same observation applies to this Amendment. I beg to move.

Amendment moved—

Page 14, line 32, leave out ("that conduct") and insert ("those facts").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment and Amendment No. 35 are drafting Amendments, consequential on Amendment No. 21. I beg to move.

Amendment moved—

Page 14, line 37, leave out ("(4) and") and insert ("(3A) to").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the Amendment to which I have just referred. I beg to move.

Amendment moved—

Page 14, line 39, at end insert (", but as if in the said subsection (3A) the reference to subsection (2) were a reference to subsection (2) of this section.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 [Privilege against incrimination of self or spouse]:

8.48 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out the first "Any" and insert "The". The noble and learned Lord said: I think this is the last Amendment on which I need say more than a few words. This Amendment and Amendment No. 37 are paving Amendments anticipating the new subsection (2A) inserted by the Amendment to Clause 14, page 15, line 24. These two drafting Amendments are intended to clarify the effect of extending the general privilege against self-incrimination to cover incrimination of a spouse.

Clause 14(1) is intended to confer a general privilege against incrimination of a spouse co-extensive with the general provision against self-incrimination. It follows that if in a particular case the privilege against self-incrimination is taken away, then the privilege against incrimination of a spouse should also be taken away. It can be argued that, as drafted, Clause 14 already has this effect, on the ground that subsection (1) (b) operates only where there already is a privilege against self-incrimination. But this is not altogether clear, since it can equally be argued that to take away only the existing general privilege against self-incrimination in a particular case would not ipso facto take away the new general privilege against incrimination of a spouse conferred by Clause 14(1).

Accordingly, the first two Amendments make it quite clear that Clause 14(1) is dealing with the general privilege; and the new subsection (2A) provides in terms that any enactment negativing the privilege against self-incrimination also negatives the privilege against incrimination of a spouse. A further advantage in so providing is that there are some dicta which might constitute authority for the proposition that the privilege against incrimination of a spouse subsists at Common Law. If so, it is all the more necessary that it should be taken away wherever the privilege against self-incrimination is taken away.

Also, in its present form Clause 14 is not entirely satisfactory as a support for those Amendments to existing enactments contained in the Schedule which would make those enactments expressly negative the privilege against incrimination of a spouse. It will be more convenient for the practitioner if these Amendments are made, because they will make it immediately clear without reference to Clause 14 what effect the enactment in question is to have as a result of Clause 14. Subsection (2A) justifies their inclusion in the Schedule. I beg to move.

Amendment moved—

Page 15, line 4, leave out ("Any") and insert ("The")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I dealt with this Amendment under the previous Amendment, No. 36. I beg to move.

Amendment moved—

Page 15, line 22, leave out ("such a right as is") and insert ("the right").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I dealt with this Amendment also under Amendment No. 36. I beg to move.

Amendment moved—

Page 15, line 24, at end insert— ("(2A) In so far as any existing enactment provides (in whatever words) that in any proceedings other than criminal proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate that person, that enactment shall be construed as providing also that in such proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate the husband or wife of that person.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

If the Committee would agree to take Amendments Nos. 39, 40 and 41 together, it would be convenient since they are all consequential.

THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)

I can only take the next two Amendments. Amendments 39 and 40 have been moved en bloc.

THE LORD CHANCELLOR

My Lords, I beg to move.

Amendments moved—

Page 15, line 25, at end insert ("that")

Page 15, line 27, leave out from beginning to ("provides") in line 31 and insert— ("(b) provides as mentioned in subsection (2A) above, further").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Consequential Amendments relating to privilege]:

THE LORD CHANCELLOR

This Amendment is consequential on Amendment No. 38. I beg to move.

Amendment moved—

Page 18, line 34, after ("(2)") insert ("(2A)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [General interpretation, and savings]:

THE LORD CHANCELLOR

This is a drafting Amendment consequential on the Amendments to Clauses 11, 12 and 13. I beg to move.

Amendment moved—

Page 19, leave out lines 12 to 14.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 18, as amended, agreed to.

Remaining clauses agreed to.

Schedule agreed to.

LORD AIREDALE

We owe an apology to the noble and learned Lord the Lord Chancellor for having criticised his use of the expression "civil offence". If my memory serves me correctly, the words "civil offence" appear in the Army Act itself in contradistinction to a military offence. I do not think we ought to have questioned those words.

THE LORD CHANCELLOR

I am grateful to the noble Lord for what he has said. That was my recollection. But when the noble Viscount said what he did, I thought I must have been wrong, because there is provision in the Army Act making any civil offence a military offence.

VISCOUNT COLVILLE OF CULROSS

Ignorance is no excuse on my part, but I think that the way we put it was clearer.

House resumed: Bill reported with the Amendments.