COMMONS AMENDMENTS (Hansard, 16 October 1968)

§ THE LORD CHANCELLOR

My Lords, I beg to move that this House doth agree with the Commons in their 1360 Amendments Nos. 3 to 14. I shall gladly avail myself of the offer which has been made, although I apprehend that it is my duty to the House to explain as shortly as I can what these different Amendments are.

Amendment No. 3 enables a number of computers used successively or in conjunction for storing or processing information to be treated as a single computer for the purposes of Part I of the Bill. Without the Amendment, Clause 5 makes admissible a statement contained in a document produced by a computer only if the relevant information was supplied to that computer and only if one identifiable computer is involved throughout. Clause 5 does not, therefore, cover the far from uncommon case in which a "stand-by" computer is used on one or more occasions when the computer normally in use is out of order or otherwise unavailable. Nor does Clause 5 as drafted cover the case, which is also common, of more than one computer being used in combination to store or process the relevant information. In that case, the product cannot properly be described as being produced by an identifiable computer in that it has been produced by the joint operation of several computers.

The whole object of Clause 5 is to make admissible in evidence statements contained in what is already the normal form of many business records, a form which is likely to become more common in the not too distant future. If Clause 5 were too narrowly drawn and excluded any document where more than one computer had been involved in storing or processing the relevant information or in producing the document, it would not serve the need of the commercial and industrial community.

Amendment No. 4 is consequential on the insertion in Clause 5 of the new subsection (2A) to which I have just referred. As Clause 5(3) is drafted, it enables a certificate to be put in evidence to prove the conditions of admissibility of a cornputerised record.

Amendment No. 5 is a purely drafting Amendment. Part I of the Bill contains references outside Clause 5 to statements contained in documents produced by computers, and it is accordingly more accurate for subsection (4) to apply for the purposes of Part I rather than for 1361 the purposes of Clause 5. Amendment No. 6 is purely consequential upon the insertion in Clause 5 of the new subsection (2A). Amendment No. 7 is also a drafting Amendment. There is in Clause 5 more than one reference to information being derived from other information, and it is accordingly not strictly accurate to speak of "the" reference to such derivation; it should be "any" reference.

Amendment No. 8 attracts a criminal penalty to the wilful making of a false statement in a certificate tendered in evidence under Clause 5(3) (which becomes Clause 5(4) as a result of Amendment No. 3); that is to say, a certificate to the effect that the conditions have been satisfied under which a "computerised record" is admissible. Under Clause 5(3) a person holding a relevant responsible position may sign a certificate dealing with these matters, and such a certificate is admissible as evidence of the truth of its contents.

As introduced, the Bill contained no criminal sanction for a deliberately false statement contained in such a certificate. Whether there should be a criminal sanction is debatable. On the one hand, if the certificate procedure is to be freely used those concerned must not be frightened off, and the attachment of such a sanction could have that effect. On the other hand, not all parties to civil actions are scrupulously honest, and the absence of any sanction might lead a dishonest person to tell a deliberate lie in the knowledge that he would not in the normal case have to go into court to support his statement by giving evidence on oath and thus expose himself to a prosecution for perjury. Moreover, the honest but possibly not too careful man has nothing to fear under this Amendment because the offence is committed only if the falsehood is wilful.

The new subsection (5) added to Clause 6 by the Amendment follows Section 89 of the Criminal Justice Act 1967 in this respect. It also follows Section 89 in attracting the criminal penalty only to a false statement which is material in the proceedings in which the certificate is tendered in evidence. Thus, in effect, the offence will be committed only if the deliberate falsehood relates to one or 1362 other of the conditions of admissibility applicable to the computerised record in question.

My Lords, if I may take Amendments Nos. 9, 10 and 11 together, these drafting Amendments make it clear that rules of court will (a) not have to provide that a notice under Clause 8(2)(a) relating to a hearsay statement, or to an "ordinary" or "computerised" record, must name every person connected in the relevant manner with the making or recording of the statement, or the operation of the computer system, as the case may be, but (b) will be able to provide that one or more such persons is to be specified in the notice.

As drafted, Clause 8(2)(a) required the rules to provide for a notice giving to the other parties: particulars of any person who was in any manner so specified connected with the making or recording of the statement", and so on. It was represented that the words "any person" might be construed by the rule-making authorities as making it mandatory for the rules to provide that every person connected with or concerned in any of the relevant manners must be included. It was not the intention to bring about such a result. What is envisaged is that, in the case of, for example, a computerised document, the rules should require the party to give particulars of a person holding a responsible position in connection with the system for supplying information to the computer, a person holding such a position in connection with the operation of the "hardware", and a person holding such a position in connection with the system under which print-outs are produced. In many cases one person will be able to cover all three aspects, and that person may also be the person who signs the certificate under Clause 5(3).

My Lords, Amendment No. 12 is a drafting Amendment. "Computer" is an expression used in a number of causes in Part I of the Bill, and it is therefore convenient to include in the interpretation clause a reference to the definition of computer set out in Clause 5. Amendment No. 13 is also a drafting Amendment, to make it clear that the extended construction to be placed, by virtue of Clause 10(2), on any reference to a copy of a document "applies to a copy not 1363 only of the whole of the original document but also of a material part of such a document.

Amendment No. 14 is a drafting Amendment which was made in Committee in the other place to define "affiliation proceedings" in relation to Scotland as meaning "any action of affiliation and aliment". "Affiliation proceedings" is not a technical term in Scottish law, as it is in English law. The technical term in Scotland corresponding to affiliation proceedings in England is "an action of affiliation and aliment", and this is the expression used in the corresponding provision of the current Law Reform (Miscellaneous Provisions) (Scotland) Bill. It is obviously desirable that the two Bills should, as far as possible, incorporate the same definitions, and the Amendment achieves this object. I beg to move that this House doth agree with the Commons in the said Amendments.