CRIMINAL LAW REVISION COMMITTEE ON EVIDENCE

HL Deb 14 February 1973 vol 338 cc1546-59

3.0 p.m.

VISCOUNT DILHORNE rose to call attention to the Eleventh Report of the Criminal Law Revision Committee on Evidence (General) (Cmnd. 4991); and to move for Papers. The noble and learned Viscount said: My Lords, I rise to move this Motion with some degree of trepidation, for two reasons. The first is an unusual one: that I see from the list of speakers that I am to be followed by my two successors in the office of Lord Chancellor who will have a great opportunity, if they wish to take it, of perhaps tearing apart many of my observations.

The Criminal Law Revision Committee was asked by my noble friend Lord Brooke of Cumnor in 1964, To review the law of evidence in criminal cases and to consider whether any changes are desirable in the interests of fair and efficient administration of justice: and in particular what provision should be made for modifying rules which have ceased to be appropriate in modern conditions.

I think everyone will agree that the Committee was composed of very distinguished lawyers, many of them of great experience in the criminal law. They have produced a massive Report—not the easiest of documents to read and digest—and they propose changes in the criminal law which I think those who have read the Report would agree are of a radical and far-reaching character.

The other reason why I move this Motion with some trepidation is that once before I ventured to criticise the recommendations of the Criminal Law Revision Committee and I then drew upon myself a stern rebuke from the then Lord Chancellor, the noble and learned Lord, Lord Gardiner. He rebuked me for putting down 25 Amendments to the Theft Bill—a Bill, he said, drafted by 17 of the best known judges and academic lawyers. He said it was a brave thing to say of 25 Amendments: "I know better than that". Of course I did not say that, and many of the Amendments were accepted by the noble and learned Lord. He would not have accepted them if he had not believed that they improved the Bill—and perhaps if he had accepted more some of the difficulties in relation to that Act would not have arisen.

The noble and learned Lord went on to say—and I quote his words— Whereas in the ordinary way there ought to be a presumption that whatever is in a Government Bill is wrong, when we are dealing with a matter that has been considered by so distinguished a Committee as this there ought to be a presumption that what is in the Bill is right". Despite that, I fear that I am again going to be critical of some of the present recommendations of the Committee. I do so reluctantly, but there are some which I cannot think are right. I shall be interested to hear whether the noble and learned Lord, Lord Gardiner, is also critical. Perhaps we may, for once, agree in our criticisms; and if we do, I hope that we shall not be rebuked for our temerity by the present Lord Chancellor.

I tabled this Motion because I thought the House should have an opportunity of stating its views on these important changes that are proposed. I think that might be of value to those who are considering legislation, and indeed, may forewarn them that if the Bill implements certain of the proposals it is likely to have a very stormy passage in this House. Their proposal "to restrict greatly the so-called right of silence"—and those are their words—"of persons interrogated by the police" has attracted most attention, but that is by no means the only very important and, I think, controversial recommendation they have made. I intend to draw attention to those which I regard as being most important, and to comment on them. This, I fear, must take me some time but I will try to avoid inflicting on your Lordships a speech of unendurable length.

I should like to begin by referring to their recommendations as to the giving of evidence by the accused. They propose that the right of an accused person to make an unsworn statement should be abolished. I think that is right. An unsworn statement is not evidence in the strict sense and it must be difficult for a jury to decide what weight, if any, to give to it. I think if an accused person is to give evidence at his trial he should do so like any other witness, from the witness box and on oath. I shall be interested to hear whether there is any disagreement with that.

What I think will be more controversial is their proposal that unless the accused's physical or mental condition is such that it is undesirable for him to be called upon to give evidence, he will be called upon to testify; that if he does not, the jury may draw such inferences from his refusal as appear proper, and further, that such a refusal may amount to corroboration.

It has long been recognised that a judge is entitled to comment on the failure of an accused to give evidence if there is a prima facie case against him. The Criminal Evidence Act, 1898, prohibits comment on his failure by the prosecution: the Committee recommend that that prohibition should be abolished. I agree with that, for it must appear to a jury very odd that there should be no comment by the prosecution; and also if the judge comments, as he should in some cases, it may tend to make it appear that he is putting on the mantle of a prosecutor. Such a comment, of course, can only be made where a prima facie case has been established; that is to say, a case which points to the conclusion that the accused is guilty if that case is not answered. When such a case is established, if the accused does not give evidence what weight is to be given, and should be given, to the fact that he has not done so? On this there has been a difference of legal opinion.

In a case in which I prosecuted many years ago the noble and learned Lord, Lord Devlin, having ruled that there was a prima facie case, then, when the accused chose not to give evidence, directed the jury that it was "utterly wrong" (those were his words) if they were to regard the accused's silence as contributing in any way towards proof of guilt. He said—and I again quote his words—"It does not, and it cannot". With respect, I venture to disagree. The silence of an accused is not evidence, but it is a fact that the jury are surely fully entitled to take into account when they retire to consider their verdict and when they have to decide whether they are satisfied beyond reasonable doubt of the guilt of the accused. In 1953 the late Lord Goddard said in a case Everybody knows that absence from the witness box requires a very considerable amount of explanation. That observation has been cited with approval in a recent decision of the Court of Appeal (Criminal Division) in Regina v. Sparrow.

If a case is established against the accused what is the point of a judge being entitled to comment (as he clearly is) on the accused's failure to give evidence, if that is not a factor which the jury is entitled to take into account? If the noble and learned Lord, Lord Devlin, is right, what is the point of the judge, and the judge alone, being entitled to comment on something which has no bearing on the guilt of the accused?

The Criminal Law Revision Committee clearly rejected his view. They expressed the opinion that the present law and practice are much too favourable to the defence. I agree. They say they—and I quote their words— are convinced that when a prima facie case has been made against the accused it should be regarded as incumbent on him to give evidence. I am not quite sure whether "incumbent" is a very happy word. An accused is, and must always be, entitled to remain silent. He has always the privilege of silence and he must continue to have it; but he must know, and common sense should tell him and also the jury, that if he exercises that privilege when there is a case for him to answer established against him, significance will be attached to his doing so. The Criminal Law Revision Committee go further and propose that the court should tell the accused that he will be called upon to give evidence and tell him what the effect will be if he does not. I do not think that that is necessary where the accused is represented, but where he is not that is clearly desirable.

My Lords, I have dealt with this recommendation first for it bears on the Committee's recommendations that it should be permissible for a court or jury to draw whatever inferences are reasonable from the failure of the accused, when interrogated by the police, to mention a defence which he puts forward at his trial. That is translated in the draft Bill to failure to mention, when interrogated, a fact relied on in his defence. It is provided in the Bill that such inferences may be drawn from such a failure as appear proper. With the greatest respect to the Committee, that is going far too far. It seems to me that it is one thing to say that silence when an innocent person would have been expected to speak can have significance attached to it, and quite a different thing to say that if an accused fails to mention in the course of his interrogation by the police any fact upon which he subsequently relies, an adverse inference can be drawn. That is wholly unacceptable. I do not think it right that any inference should be drawn from an accused's silence on committal proceedings before the magistrates. He may submit to them that there is no case for him to answer. That submission may fail. He may wish to renew it at his trial. I believe that it would be wrong to prejudice his chances of doing so successfully by allowing an inference to be drawn at his trial from the fact that he kept silent before the magistrates. An accused person should be entitled to reserve his defence, if he so wishes, to his trial.

What about when he is interrogated by the police? Should any inference be drawn from his failure to speak, when an innocent person would be expected to speak? I would say, "Yes, undoubtedly" but for one thing: there is not now available a complete record of the interrogation. Unless and until such a record is available, it seems to me that the risk is very considerable that in a number of cases, from the account given of the investigation, an adverse inference would be drawn when, if the complete record could be seen, it would be clear that no such inference should be drawn.

Further, in the Report of the Royal Commission on the Police in 1962, it is said in paragraph 369: There was a body of evidence, too substantial to disregard, which in effect accused the police of stooping to the use of undesirable means of obtaining statements and of occasionally giving perjured evidence in a court of law.

—a practice commonly known as "putting in the verbals". I do not think that it is a very frequent practice, but those who "put in the verbals" to strengthen the prosecution's case may be tempted so to present their evidence as to make it clear that the accused's silence or his failure to mention a fact had significance.

So while I believe that inferences can properly be drawn from the accused's silence at his trial, from his failure to answer the case against him, I am strongly opposed to a court or jury being entitled to draw inferences from his silence or failure to mention a relevant fact in the course of his interrogation by the police, unless and until a satisfactory method of recording what happens during the investigation is brought into use. Indeed, I feel that no matter whether the recommendation of the Committee be accepted or not, some such safeguard for the accused by the provision of a record of his interrogation is very desirable. Two methods have been proposed: one by Justice—that interrogation should take place before magistrates and that a complete verbatim record should be made of the interrogation. I believe that that might cause delay and might impede the proper activities of the police. The other method is that tape recorders should be used to record investigations which take place at police stations. A minority of the Criminal Law Revision Committee favoured that method. How large a minority we are not told. We do not know how many constituted the majority, but the minority suggested that a speaking clock should be superimposed on the recording to make it more difficult to tamper with. If that was done and the tape recorder kept in a locked box to which only a very senior police officer had the key, with the interrogating officer only able to switch on or switch off the recorder that, I believe, would provide an adequate safeguard. Only if some such safeguard can be brought into operation should, I think, any part of the Committee's recommendations in relation to interrogations by the police be implemented.

The Committee further recommend that the accused's silence when an innocent person would be expected to speak can be treated as corroboration of the evidence against him. If my view is accepted that will only be in regard to his silence, until a satisfactory safeguard is devised, after a prima facie case has been made against him at his trial. There are some offences where Parliament requires that there should be evidence of corroboration. I would expect that if that evidence of corroboration is not produced by the prosecution before their case is ended, the judge would accept a submission that there was no case to answer. But there are other cases where it is open to a jury to convict on the evidence of a witness alone but when it is safer if there is evidence of corroboration. In those cases I see no reason why the silence of the accused when a case has been made out for him to answer, should not be regarded as corroboration. That is common sense and that is a desirable change.

What about the Judges' Rules? They are a historical anachronism. They were first drafted in rather unusual circumstances because of two contradictory rulings being given by judges at Birmingham Assizes. I must say that I believe it is a historical anachronism that those rules should be prepared and put forward by judges. Rules for the behaviour of the police should be a function of the Home Office, not the judges. It should be for the judges to say what evidence is allowed to be given in courts, but that is quite a different matter. I take the view that in these modern days there is really no need for any such rules and no need for there to be any "caution". Surely, there are few people now who are so stupid as not to realise that if interrogated in relation to the commission of a crime, what they say may be given in evidence.

The test in the courts must be, must it not, whether there are Judges' Rules or Home Office rules or no rules, that to be admissible in evidence the prosecution must show that the accused's statement was made voluntarily and not obtained by fear or prejudice or hope of advantage or by oppression, of such a nature as to render the statement or confession unreliable? It is for a judge to rule whether a statement is admissible. He must, I think, have regard not only to what was said but also to the person to whom it was said, for a threat to a young girl may have very much greater significance than one to a man of mature years. In my view, the Committee were right to preserve the existing law in general, but to require that to render a statement or confession inadmissible by reason of a threat or inducement the threat or inducement must be of such a character as was likely in the circumstances to render the statement or confession unreliable.

My Lords, I now turn to another very controversial recommendation of the Committee, that the common law rule that evidence showing a disposition to commit the offence charged is in general inadmissible be retained but, they say, relaxed. Under the present law, in certain circumstances evidence of previous misconduct is admissible. The Committee want to preserve that, but also they want to enlarge the occasions on which such evidence can be given. It would, I think, lengthen my speech inordinately if I were to state in detail the reasons why I am against that enlargement. Evidence of previous misconduct is extremely prejudicial to the accused. Its admission is justified in the cases in which it is now allowed. It is so prejudicial that we should be extremely hesitant about extending its admissibility. I find the reasons clearly stated in the Memorandum of the Criminal Bar Association for rejecting this recommendation extremely cogent and convincing. I do not think it is necessary for me to repeat them.

I do, however, agree with the Committee that where evidence of previous misconduct is now admissible the fact that the accused was convicted of that misconduct should be admissible in conjunction with the facts of that misconduct. For it must appear odd to a jury if they are told of previous misconduct similar to that alleged at the trial but are not told what was the result of that misconduct. If the figures given in their Memorandum by the Society of Labour Lawyers are anywhere near correct—I think this is the first time I have ever quoted from a memorandum of theirs—and I see no reason to doubt them, it would mean, if this recommendation were adopted, that in future evidence of previous misconduct and of previous convictions, no matter how long ago, will become admissible in a very large number of cases.

I now turn to the Committee's recommendation about the burden of proof which is sometimes placed on the accused, and I regret that I must again record my dissent from what they recommend. In a number of Statutes Parliament has enacted that a man shall be convicted if the prosecution prove certain matters, and that, of course, means prove them beyond reasonable doubt, but that if the accused proves certain other matters then he shall not be; and proof by the accused, of course, does not mean proof beyond reasonable doubt, but proof on a balance of probabilities, a far lesser burden of proof.

One instance of Parliament enacting such a provision is in Section 1(1) of the Prevention of Crimes Act 1953. That provides that a man commits an offence if he has an offensive weapon in a public place without lawful authority or reasonable excuse the proof whereof shall lie on him".

I would have thought that to a layman nothing could be clearer than that. The police arrest a man in Trafalgar Square. They find he has on him an offensive weapon. They cannot prove he had it without lawful authority or reasonable excuse, but if he can prove that on the balance of probabilities he had lawful authority or a reasonable excuse for having it in his possession, he is entitled to be acquitted. Other similar statutory enactments could be cited. For instance, the Magistrates' Courts Act 1952 provides that where the defendant to an information relies for his defence on any exception, proviso, excuse or disqualification, the burden of proving the exception, proviso, excuse or qualification lies on him.

The Committee now propose that all that should be changed. In place of this comparatively simple concept, they propose that these Acts of Parliament, in which a burden of proof of some matter has been placed on the accused, should not be interpreted as placing a burden of proof on him, but only the burden of producing sufficient evidence to raise an issue as to the matter which Parliament has said he must prove. If a man gives sufficient evidence to raise an issue as to whether, for instance, he had lawful authority or a reasonable excuse for being in possession of a weapon in a public place, then, the Committee say, the burden of proving that he had it without lawful authority or reasonable excuse, the burden of proving, the negative beyond reasonable doubt, should lie on the prosecution.

Evidence sufficient to raise an issue is quite different from evidence which shows on a balance of probabilities that there was lawful authority or reasonable excuse for having the weapon. The judge will have to rule whether there is sufficient evidence to raise the issue. It is for the jury to decide what weight to place on the evidence. As I see it, he would have to tell them, if possession of an offensive weapon was triable on indictment, that if they accept certain evidence that suffices to raise the issue, but if they do not accept it then they should convict; but if they do accept it, then the prosecution must satisfy them beyond all reasonable doubt that the accused had no lawful authority or reasonable excuse. What a jury would make of that kind of direction I do not know, but what I think it clear is that what is now proposed is not what Parliament intended when enacting those provisions.

I think that that recommendation is likely to be productive of a large number of appeals. If a judge rules that there is not sufficient evidence to raise an issue, this is likely to be challenged on appeal. I think that this recommendation will add greatly to the difficulties of summing up, and an error in summing up can lead also to an appeal. The recommendation appears to be based on the decision in the case of Woolmington, a decision of this House, but I think it would extend that decision very considerably, and I think it would be wrong to do so. Where Parliament has said in the clearest terms, that the accused has the burden of proving certain matters, I think it is wrong that it should now be interpreted as meaning that he should not prove it and that all he has to do is to produce sufficient evidence to raise an issue. There are a number of these recommendations by the Committee which tilt the scales against the accused, but this recommendation I think is unnecessarily favourable to him and in my view one without merit.

There is one other point. The Committee recommend that a husband or wife should be compellable witnesses as to events during their married life if their marriage has ended. If their marriage had continued they could not be compellable witnesses to matters which had taken place during the course of their marriage. I myself think it would be wrong to make them compellable in consequence of the termination of the marriage. I do not agree also with the Committee's suggestion that a witness cross-examined as to credit may be asked whether he has been acquitted. The fact that he has been acquitted of an offence should not reflect on his credit.

On another point, the present position is that if a witness gives evidence inconsistent with a statement he has previously given, that statement can be put to him, and the fact that he has made contradictory statements is likely to destroy the credibility of his evidence in the eyes of the jury. Such a statement is not now evidence against the accused of the facts stated in it, but now the Committee recommend that it should be. So you may get a statement, not on oath, by a witness, accepted by a jury as the truth despite his evidence on oath. My Lords, I agree with the Criminal Bar Association in not liking this at all, because it appears to contemplate that at a trial the evidence against the accused may be partly sworn evidence and partly unsworn from the same witness. At present only young children can give evidence unsworn. This proposal permits of the use of other unsworn evidence if that evidence has been contradicted by the witness's evidence on oath. I really do not think that this will do.

I do not like the recommendation that a judge should be relieved of the obligation to warn a jury of the danger of convicting on the uncorroborated evidence of an accomplice. The Committee recommend that in every case it should be left to the discretion of the judge whether or not to give a warning. I fear that if the present rule is abolished, it may happen that a judge may fail to give a warning when the Court of Appeal think one should have been given, with the result that the conviction will be quashed. And, if a warning had been given, the jury might have formed the view that the accomplice had no motive for lying and have convicted and the conviction would then stand.

I now come to what I regard as the most revolutionary of the Committee's proposals; that is, those relating to the admissibility of hearsay evidence in criminal trials. The present position is that, with a few exceptions, hearsay evidence is not admissible, and the reasons for that are, I think, three: first, that hearsay evidence is inherently unreliable; secondly, that it can easily be manufactured; and thirdly, it cannot usually be tested satisfactorily by cross-examination. I know that the law with regard to the admission of hearsay evidence has been relaxed in civil proceedings as a result of the 13th Report of the Law Reform Committee; and there will I expect, be some who say that what is right in civil proceedings cannot be wrong in criminal practice. I do not agree. In criminal proceedings a man's liberty, it may be for a long period, is at stake. Indeed, in some cases still, his life may be at stake. The Committee say that they propose "large inroads" into the rule against the admission of hearsay evidence in criminal trials. They certainly do.

I agree with Clause 34 of their draft Bill, which makes certain records admissible as evidence of the facts stated in them. That will get rid of the difficulties encountered in Myers v. Director of Public Prosecutions. I agree also with Clause 35, which provides for the admission of statements produced by computers, and with Clause 38, which provides for the admission of hearsay evidence by agreement between the parties. But I have the strongest objection to Clause 31. That provides that in certain circumstances any statement, whether made orally or in a document made before the accused was charged with an offence or officially informed that he might be prosecuted or served with a summons, shall be admissible as evidence of a fact which, if it were stated on oath, would be admissible. One of the circumstances in which such evidence will be admitted is if the statement is by someone who has been, or is called, as a witness. So, if this is allowed, you will have witnesses going into the witness box and just asked if that is their statement, and the jury will be deprived of hearing their evidence and of assessing what kind of person the witness is.

The Committee also propose that a statement made by someone who refuses to be sworn should be made admissible evidence, and also that a statement by a person who is a competent but not compellable witness should be admitted in evidence if he refuses to give evidence. Where there is such a refusal to be sworn or to give evidence, this means that there will be no opportunity for cross-examination at all and that wholly untested statements will be accepted as evidence of the facts stated therein. It is also proposed that a statement shall be admitted if it be shown that the person who made it is dead or unfit by reason of his bodily or mental health to attend as a witness. If he is unfit by reason of mental health one may ask: should there not be evidence as to his mental health at the time the statement is made, before it is admitted?

Then there comes the, to me, absolutely astonishing proposal that a statement by a person who cannot be identified is to be admissible in evidence if all reasonable steps have been taken to identify him and he cannot be identified. What does that mean? Let us suppose that a document is found lying in the street, unsigned, but containing a lot of facts which would be very useful as evidence to the prosecution. As I understand it—and I hope that I shall be corrected if I am wrong—that means that the prosecution could produce that statement and say, "Here is this statement; it is evidence of these facts. We do not know who made it. We have done our best to find out, without success. Here it is, and it is evidence under this Act". Conversely, how convenient it could be to the defence to produce documents by someone unknown and just say, "We have done our best to identify the author. We have failed. We have taken all reasonable steps, and now this has got to be admitted as evidence." I really do not think that that will do. I do not think that that change is really consistent with British justice. The idea that a man may be convicted on the statement of someone who is not, and cannot be, identified, and on a statement which cannot be tested at all, is absolutely abhorrent to me.

My Lords, I have nearly done. I am sorry to have taken so long and to have been so critical. I had hoped to be able to support the Committee's recommendations to a very substantial degree when I started to read their Report. I shall listen with the greatest interest to what others have to say, and I am very glad to see that so many have put down their names to speak in this debate and let the Government have the advantage of hearing their views on these difficult questions. I do not expect agreement with all the views that I have expressed—that would be too much—but I hope I shall have some support. I hope that I may even have some support from the noble and learned Lord, Lord Gardiner. I hope, too, that the Government will give serious consideration to the views of everyone who speaks in this debate. My Lords, I beg to move for Papers.