COMMONS AMENDMENT (Hansard, 21 October 1980)

§ Lord MACKAY of CLASHFERN
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 70. Amendment No. 70 is for the purpose of introducing a new clause implementing the recommendation of the Thomson Committee that criminal courts should be given power to receive the evidence of witnesses who are unable to be present at a trial, provided that the court is satisfied that the evidence is necessary and that no unfairness to either party would result. Your Lordships will note a misprint on the Marshalled List. It is the break in the new clause where "trail" appears instead of "trial". These stringent requirements mean that the evidence will only be so received when it is of a formal nature; for example, the evidence of an expert witness whose testimony is not disputed, and there will thus in practice not be a great number of cases where the new procedure can be resorted to.
I would emphasise that the right to apply to the court to exercise these powers will be available to both the prosecution and the defence, and each will have the right to oppose any application made by the other. The power will be available only to the sheriff court and the High Court but not in the district court. I think the clause sufficiently explains its method for me not to require to go into any further detail. I beg to move.

§ Lord McCLUSKEY
My Lords, without asking the noble and learned Lord to go into all the details, I wonder whether he can assist me to understand one part of it. I refer in particular to the use of the word "or" in the 29th line of the 1796 new clause. As I understand it, the new clause, subsection (2), requires the judge to be satisfied about certain matters; that is, first, the necessity for the evidence which is required to be taken in this fashion and, secondly, as to the absence of unfairness. Both these judgments require to be made by him, of course, at the time the application is made, and, therefore, before the evidence is recorded. Subsection (3) then deals with the situation after the evidence has been obtained and the record is available, and that requires that that record shall be received. But it goes on to say: shall … be received in evidence in so far as it either accords with the averment mentioned in paragraph (a) 'the one relating to the necessity of that subsection' or can be so received without unfairness to either party". Does that mean that if the evidence is judged to satisfy the test of necessity then the court has no discretion to refuse to allow the evidence to be received, even if the court could be persuaded that it was unfair that the evidence be received?

§ Lord MACKAY of CLASHERN
My Lords, I am obliged to the noble and learned Lord for raising this point. It gives me the opportunity to explain a little further what is behind this subsection (3). Subsection (2) describes the initial procedure on the application for this method of taking evidence, and your Lordships will see that it provides, about halfway down the first part of subsection (2), that The application may be granted only if the judge is satisfied that— (a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; If I may pause there for a minute, that refers to evidence which it is averred the witness is able to give and the judge is told that at that stage and, having been told that, he is then to judge, in the light of that, whether it would be unfair to either party that this application should be granted. Assuming he decides that the application should be granted, the matter of fairness, so far as evidence covered by that averment is concerned, is settled, and evidence which comes in the report or in the record which accords with that averment is already covered by the judge's decision. But, of course, it often happens that, even with the best prepared cases, when you actually go to 1797 see the witness and hear what he has to say he may say something else, which is not covered by what the judge was told the witness was going to say. When that happens, it is obviously a question whether the record on that part should be admitted. What we are saying is, where the evidence goes beyond what was originally forecast to the judge when he granted the application, it is only to be received where it may be so received without unfairness to either party. I hope that explains the point which the noble and learned Lord has raised.