HL Deb 11 July 1984 vol 454 cc889-903

3.9 p.m.

Baroness Trumpington

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

Moved, That the House do now again resolve itself into Committee.—(Baroness Trumpington.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 65 [Evidence from documentary records]:

Lord Elwyn-Jones moved Amendment No. 156ZD: Page 62, line 6, at end insert— ("and (c) the court is of the opinion that the statement ought to be admitted in the interests of justice, having regard—

  1. (i) to the circumstances in which leave is sought and in particular to the contents of the statement; and
  2. (ii) to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based.").

The noble and learned Lord said: This amendment is related to Clause 65, which deals with evidence from documentary records. Your Lordships will see that by the provisions of Clause 65(1): a statement contained in a document shall be admissible in any proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if—

  1. (a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and
  2. (b) any condition relating to the person who supplied the information which is specified in subsection (2) below".
It is therefore an important provision in enabling documents of that kind to be produced in evidence in a criminal trial.

Amendment No. 156ZD proposes to insert at the end of the provisions that I read out: and (c) the court is of the opinion that the statement"— in other words, the document— ought to be admitted in the interests of justice, having regard—

  1. (i) to the circumstances in which leave is sought and in particular to the contents of the statement; and
  2. (ii) to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based".
It may be convenient in conjunction with that amendment to consider also Amendment No. 156ZE. Amendment No. 156ZE: Page 62, line 23, at end insert— ("() In the case of a person such as is described in subsection (2)(a)(iii) above, he shall be called as a witness if any party to the proceedings so requires."). It proposes that, In the case of a person such as is described in subsection (2)(a)(iii)", of the provisions, who cannot reasonably be expected, (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information, he shall be called as a witness if any party to the proceedings so requires". Otherwise, the effect may well be that a documentary record which may be seriously prejudicial to the accused could be admitted in circumstances where it is practically unchallengeable. I beg to move.

Lord Denning

I think that this amendment is unnecessary. It relates to the rule against hearsay, which applied in civil and criminal cases in the common law. As was said in Bardell v. Pickwick, what the soldier said is not evidence. That situation was altered in the Evidence Act 1938 in regard to civil cases in matters such as this, but it remains in criminal cases.

A leading case is where the House of Lords affirmed the hearsay rule in these circumstances. Some crooks had purchased motor cars which were damaged beyond repair. They purchased them for a song. They stole other cars of the same make, took the number plates from the damaged cars (which were worth nothing), put them on to the stolen cars and made a good profit. They made out that they were good ones. In order to prove the crime it was necessary to get to the records of the manufacturers to see the numbers which had been put on the various parts of the cars, such as the cylinder heads and everything like that, which had been made in the course of duty by the people who stamped the numbers and made the records in the books, and everything like that. The House of Lords, to many people's regret, held that those books and statements were not admissible because of the rule against hearsay.

Clause 65 is a most valuable clause. It puts the criminal law on the same basis as the civil law in regard to evidence from documentary records, such as the things that I have mentioned—the manufacturers' records, the numbers on the parts, and the like. It is a most valuable provision. There have been the necessary exceptions. I should have thought that it was quite unnecessary to add these amendments. The clause is perfectly clear and applicable in itself. As I say, it seems to me that the amendments are not necessary and may even complicate the matter beyond what is necessary. I oppose the amendments.

Lord Mishcon

It is with fear and trembling that I follow the noble and learned Lord not for the first time in regard to this Bill. On many occasions I have had the opportunity, as have my noble friends, of saying how much we agree with him, but there comes a time when, if we think that he errs, in spite of his great wisdom, it is our duty to say so.

The noble and learned Lord talks in terms of equating the civil law with criminal law. We start off with one very vital difference, as he will be the first to agree: civil law is built up on the basis of proof, and the test in regard to that proof is the balance of probabilities. The question of proof in criminal law is, "beyond all reasonable doubt". So we start off with a very essential difference. That difference is to be carried through when one is thinking in terms of evidence, because it is the evidence that is going to prove whether something is beyond all reasonable doubt.

I say this with deep respect. Although the noble and learned Lord used—I am sure for the purpose of shorthand English—the definition of hearsay, what he was really referring to, I am quite sure, if he wanted to particularise, was the difference between primary and secondary evidence; and that is a very vital distinction in his definition of hearsay.

I hope that the noble and learned Lord appreciated that my noble and learned friend did not quarrel with the clause in the Bill. The noble and learned Lord said that it was about time we had something which enabled secondary evidence to get in in certain circumstances. My noble and learned friend agrees with that proposition. The only point that he was making was—and that would have been covered in the previous case to which the noble and learned Lord so tellingly referred—if there had been a provision in an Act of Parliament, as there now is, under which this sort of secondary evidence were admissible, and the court had had the benefit of this amendment—and this amendment purely reciting that: the court is of the opinion that the statement ought to be admitted in the interests of justice"— those records would have got in, as the noble and learned Lord will agree. Then if we go on, having regard … to the circumstances in which leave is sought and in particular to the contents of the statement", the court in the case to which he referred would have said, "Well, that one is all right, quite obviously". Then we go on to the last safeguard: and … to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based". That would have got through as well in the circumstances.

Having regard, therefore, to the facts that: (a) the noble and learned Lord was talking about hearsay and not secondary evidence; (b) there is this vital difference between civil and criminal law on the basis of balance of probabilities and the onus of proof on a prosecution to prove something beyond all reasonable doubt; and (c) this clause will admit the secondary evidence, these are purely safeguards that would have made the task of the court in the case which he cited absolutely easy.

The noble and learned Lord has a breadth of mind which will always enable him to reconsider anything after a submission is made to him. I hope that in the light of that submission he will tell the Committee that he now agrees with the amendment.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

Far be it from me to enter into the dispute between such notable experts as my noble and learned friend on the Cross-Benches and the noble Lord. Lord Mishcon. But of course in declaring the Government's approach to these two amendments —since the noble and learned Lord, Lord Elwyn-Jones spoke to both ZD and ZE—I am bound to disclose my hand. I am bound to say that, without showing partiality to either, I come down heavily on the side of the noble and learned Lord on the Cross-Benches. I do not know why the noble Lord should express surprise. I have often differed from him and he from me. But I am bound to say that on both the points the noble Lord, Lord Mishcon, was, indeed, demonstrably wrong.

In the first place, the difference between criminal and civil law and the difference in the standard of proof required to secure a conviction before a jury is not relevant to either of these amendments. The noble and learned Lord on the Cross-Benches was quite right in disregarding it. In either case, whether or not the amendment be passed, a jury will have to be satisfied beyond reasonable doubt that the guilt of the accused has been established. So that point was a bad one.

The second point he made was that the noble and learned Lord on the Cross-Benches was confusing the difference between primary and secondary evidence with the hearsay rule. Quite manifestly he was not confusing those two separate things. He was perfectly right to refer to the hearsay rule and to refer to the history of this matter which has been going on in both civil and criminal law throughout my professional experience at the Bar. The hearsay rule for a long time prevented in either civil or criminal proceedings the admissibility of what I may call duty records. The duty record was excluded, unless you called the person who made the record. The most ludicrous case of all, which has already been dealt with by statute law, was when the number of the engine of a motorcar could not be proved unless you called the workman who had stamped it on. That was of course contrary to the hearsay rule. It was not a difference between primary and secondary evidence.

If I may, with great respect, establish the point, the difference between primary and secondary evidence is the difference between originals and copies. The noble and learned Lord, Lord Denning, was perfectly justified in saying what he said and the point made against him is a bad one.

This leads me on to say why I do not think it would be wise for the Committee to accept these amendments. The speech which I would have made had I spoken earlier has very largely been made for me by the noble and learned Lord. The hearsay rule is a rule of artificiality and formalism, which is almost peculiar to our own system of jurisprudence. Of course it has immense value in a limited field of cases because it compels the party who wants to give evidence of what the soldier said to call the soldier, and that is the best evidence that can be obtained of the truth or otherwise of what the soldier said because he is then exposed to cross-examination.

But it has been developed into a state of artificiality and formalism which, quite frankly, makes the law ridiculous. It is only a trap for law students when they pass their Bar examinations. It has nothing whatever to do with the interests of justice. With great respect to the noble and learned Lord, a number of these amendments show the extraordinary conservatism, and the quite misguided conservatism, of some members of the legal profession who are very often members of Left-wing parties and not of the Conservative Party. They want to retain this form of artificiality and formalism when it serves no useful purpose whatever.

The object is to exclude from evidence duty records which would otherwise be admitted under Clause 65 in the form in which it exists in the Bill, unless certain additional facts are proved. I think that would be a thoroughly reactionary thing to try to do and it would deprive Clause 65 of a good deal of the value which it would otherwise have.

The first amendment, Amendment No. 156ZD, has drawn its language from part of paragraph 2 of Schedule 3 to the Bill. We put it in paragraph 2 of Schedule 3 because that paragraph refers to duty records made by the police. We thought it was important, in relation to duty records made by the police, that there should be a requirement—though a modified one—that the policeman who made the record should be available to give evidence. However, in the case of the kind of situation which I have been trying to indicate, it serves no useful purpose at all and to a great extent it would deprive the clause in the Bill as it stands of its intended value in the administration of justice.

There has been no call for the introduction of any such provision in general in the 20 years since the introduction of the 1965 Act. I think, with the noble and learned Lord on the Cross-Benches, that on the whole this amendment is an unnecessary complication. I hope it will not be pursued.

Within reason I would say the same of Amendment No. 156ZE; in fact perhaps I would say it with increased emphasis, because the only effect of that amendment, if read with the schedule, would be to insist in certain circumstances upon the calling of the maker of a duty record who could not reasonably be expected to recollect the matters dealing with the information. Therefore no purpose whatever would be served by calling him.

Perhaps I may trouble the Committee with a quotation from, or, at any rate, a reference to, Schedule 3, which is headed: Provisions supplementary to sections 65 and 66". The Committee will see that in paragraph 7 there appear the words: In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of section 65 above"— to which this is an amendment— regard shall be had to all the circumstances from which any inference can reasonably be drawn as to accuracy or otherwise of the statement and, in particular— (a)" — I shall for the moment ignore the words which immediately follow— and (b) to the question whether or not that person, or any other person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts". I now go back to sub-paragraph (a), which deals with the question of whether the statement was compiled contemporaneously with the occurrence or existence of the facts.

This provides the kind of factor which ought to be dealt with in front of the jury. I say, with the greatest respect to both noble and learned Lords opposite, that there is a theme song underlying a great number of the amendments which we shall be discussing this afternoon. That is, that they are saying, "Do not trust the jury. Do not let the jury have the relevant facts and decide their weight or reliability because it is not to be trusted. Instead, insert or re-insert into the law a degree of unnecessary formalism or formality which will prevent the jury from considering the question at all." It is precisely because I regard that as being in the worst possible sense reactionary that I ask that the amendments should not be pressed.

Lord Elwyn-Jones

I am fascinated by the noble and learned Lord's caricature of what he calls my theme song. If I may say so, I sing much better than that! I am impenitently conservative in asserting the difference between a criminal trial and a civil trial, criminal proceedings and civil proceedings. In the former the liberty of the subject is at stake. Therefore relaxations of the rules—such as the rule of best evidence, and other rules, which are very familiar to the noble and learned Lord—in criminal proceedings should be permitted only with the greatest possible care, especially in this Chamber, which has the custody of these matters.

In regard in particular to the second amendment, Amendment No. 156ZE, we are there dealing with the case of the proposed production of a document—from who? From a person who cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information". It may well mean that there is a document highly prejudicial to the accused from a person who can no longer remember anything about it. Surely it is right that the accused in that case should, with the leave of the judge, of course, have permission to ask for the production of such a person to question him about the statement, to refresh perhaps his memory and to ask him pertinent questions with regard to it. I would have thought, with great respect to the two noble and learned Lords, that this was elementary as a piece of fair play between the Crown and the accused. I am quite impenitent about this. However, it touches upon matters of technicality. I respect naturally the views of two noble and learned Lords, with whom I have had the benefit of agreeing and unhappily disagreeing on many occasions. In the circumstances, I am willing to ask leave to withdraw the amendment without singing any song of any kind.

Amendment, by leave, withdrawn.

[Amendment No. 156ZE not moved.]

Clause 65 agreed to.

Clauses 66 and 67 agreed to.

Schedule 3 [Provisions supplementary to sections 65 and 66]:

3.32 p.m.

The Lord Chancellor moved Amendment No. 156A: Page 104, line 15, leave out ("in proceedings in the Crown Court or a Magistrates' Court") and insert ("tendered under paragraph 8 above in a magistrates' court, the Crown Court or the Court of Appeal")

The noble and learned Lord said: I am sorry that I have such a large brief that I lose my place in it almost every time. This is a Government amendment and purely technical. It is designed to ensure that the offence of making false statements in certificate evidence applies not only to evidence produced in the Crown court or in a magistrates' court but also to any fresh evidence that may be put to the Court of Appeal. The amendment therefore corrects an omission. I hope that on this occasion we may be singing the same tune on both sides.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Clauses 68, 69 and 70 agreed to.

Clause 71 [Conviction as evidence of commission of offence):

[Amendment No. 156B, not moved.]

Clause 71 agreed to.

Clause 72 [Provisions supplementary to s. 71]:

Lord Mishcon moved Amendment No. 156C: Page 65, line 12, at end insert ("transcript of the defence plea in mitigation and the sentencing remarks of the judge or magistrate").

The noble Lord said: I can deal with this briefly. I hope that I shall not be the object of the noble and learned Lord's castigation for doing so, nor that I shall be accused of being too conservative in my approach. This is an amendment to a clause that deals with the admissibility of a conviction of an offence. Clause 72 to which I am referring says that, without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based"— and we are dealing here with a very important matter— the contents of any document which is admissible as evidence of the conviction; and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose".

May I make clear that I do not quarrel with that at all. I merely say that in order that the correct picture can be before any authority or court, one obviously ought to have, apart from the indictment and the bare conviction sheet, a transcript of the defence plea in mitigation so that it will be known why there was a conviction and what it was that led to the conviction in question and to the sentence in question, and the sentencing remarks of the judge or magistrate. Those are short requirements. At least it will mean that the whole picture in defence of the accused and in his protection will be there when matters under this section are being dealt with by record form.

I should like to quote one example that I am sure will appeal to your Lordships immediately. The indictment can read that there is an accusation of having defrauded someone out of a very substantial sum of money. The defence may show that, in fact, the sum of money was very much less than that in the indictment. But the charge is still proved and the conviction will still be registered. What will be before the next court or next tribunal would not be the fact that, in the course of the trial, it was found that very much less than the amount in the indictment was lost by the person who suffered from the fraud of the accused. All that I am asking for is complete record and not partial record.

Lord Denning

This deals with quite an interesting point about getting convictions in evidence. I illustrate it by the number of libel actions that have taken place. I give one illustration. There was the case of Mr. Goody, one of the great train robbers. He was duly convicted and sentenced. Then, Odhams Press or one of the newspapers published an article describing the exploits of the great train robbers. In support of their defence of justification they wanted to prove that he was convicted in fact. At the time it was said, "Oh, you cannot prove that conviction. You cannot put it in evidence" because it was what was called res inter alias acta—something that lies between other people concerned but which the newspaper could not prove in evidence. I am glad to say that in the Court of Appeal we got round that a good deal. We said that although you could not prove that he was guilty, you could prove it in mitigation of damage and, in effect, Mr. Goody dropped his action.

It is most important that the old rule by which convictions were not admissible in evidence should be supplanted by the rule that they are admissible in evidence. I should like to go further. If they are to be submitted in evidence, the explanatory documents, besides the mere formal documents, to explain the import of the conviction, the seriousness of it and the like, should be available to the court. I think that that may be so without the amendment, but at all events I would suggest that it is quite a good amendment to make the situation clear.

Lord Edmund-Davies

One matter puzzles me a little. I can put it shortly. I am for the spirit underlying the amendment. But having heard defence pleas in mitigation going on, sometimes for an interminable length of time, I wonder whether it will usefully advantage the convicted accused by having a transcript of the defence plea in mitigation. After all, what will count with those who hereafter have to evaluate the fact of conviction is not what the defence said in mitigation but how much of it the judge received, how much he accepted and how much of it affected the conclusion he came to regarding the appropriate sentence. I wonder whether any advantage enures from having a transcript of the defence plea. But, most certainly, I support having the sentencing remarks of the judge or magistrate. I am puzzled by the usefulness of having a transcript of the plea in mitigation.

Lord Mishcon

It appears that the matter of principle is agreed to by the two noble and very distinguished learned Lords who have spoken. I add the word "distinguished" because I find that they agree with my amendment. I did not use that adjective on the last occasion. The noble and learned Lord, Lord Denning, knows that I regard him, as does everybody else, as being entitled on all occasions to that description.

The answer, if I may make it; to the noble and learned Lord, Lord Edmund-Davies, is this. I think that if one had merely the remarks of the sentencing judge, who may say, for example, "While I support in part the opening plea in mitigation that has been made so eloquently on your behalf, nevertheless, I find myself constrained to say that there must be a prison sentence here", nobody is going to know what, in fact, the judge took into account; and, if I may say so with respect, one cannot expect the judge to be repeating all that is said that he agrees with in the plea in mitigation. He may even talk just in general terms.

I felt, and those noble friends who agree with this amendment felt, that it was rather better, as the noble and learned Lord, Lord Denning, said, to have all the relevant documents there in such circumstances. I appreciate that, in some cases, learned counsel are somewhat more lengthy in their submissions than some of us would think advantageous. But those are exceptional cases, and really the justice of the matter is such that I think we can bear with the rather prolix advocate from time to time and agree with this amendment.

Baroness Phillips

I was waiting for one of your Lordships who is a magistrate to draw attention to the fact that we are talking about the sentencing remarks of the judge or magistrate. So far, we have heard reference only to the judge. As I understood it when I was trained as a magistrate, one was told quite clearly and definitely not to make sentencing remarks; that one would be criticised if one made remarks from the Bench. As I recall them, the headlines in newspapers have always emanated from the remarks made by judges. One was told to say, "We find the case proved, or the case not proved", and so on. I am intrigued to find that now the magistrates, as well as the judges, are going to be given the opportunity of making sentencing remarks.

The Lord Chancellor

I wonder whether it would be possible for me to intervene at this stage. I hope to persuade noble Lords opposite, and, indeed, the noble and learned Lord, Lord Edmund-Davies, that this amendment is based on a confusion of thought. It is an amendment to Clause 72 of the Bill. If one looks at Clause 72, one will see that it refers back only to those documents relating to conviction which are admitted by virtue of Clause 71. So one is limited to Clause 71.

The first thing that needs to be said—I apologise if I am saying something which the Committee may think obvious—is that, so far as the defendant or accused is concerned, Clause 71 is not in point at all, because Clause 71 does not permit evidence of convictions relevant to character and specifically excludes such evidence where this only goes to show a tendency in the accused to commit the kind of offence with which he is charged. What we are concerned with in Clause 72, for the purposes of this amendment, is the fact of the conviction, and not the seriousness of the offence; the factum probatum—the fact of it proved. It has nothing to do with the seriousness of the offence; it is the fact of the conviction, and only the fact of the conviction, which is in issue.

That once clearly in mind, it leads me on to say this: if this related at all to the seriousness of the offence the conviction in respect of which was going to be proved, the case for the amendment, or rather for some other amendment in rather better draftsmanship, might well be made out. If it were for the purpose of allowing, whether it is the plea in mitigation—if I may say so, I agree without any reservation at all with what the noble and learned Lord, Lord Edmund-Davies, said about that—or the sentencing observations of the judge, which would be extremely relevant if one had to consider the seriousness of the offence, I should yield to the case. But if it is only the fact of the conviction which is in issue, neither the plea in mitigation, nor, with respect, the sentencing observations of the judge are really relevant at all to the point we are discussing.

The purpose of Clause 71 is to allow convictions of a person other than the accused to be admitted in evidence for the purpose of proving that that person committed a particular offence where the commission of that offence is relevant to the issue of the case which is being tried; that is to say, the case against the accused. So far as the accused is concerned, evidence of a previous conviction will be admitted where the commission by him of the offence is already admissible, except where this is to show a tendency to the kind of offence charged or is relevant only to his credibility. The kind of case which we are concerned with here is where the accused is charged, for example, with acting with intent to impede the arrest of a third party who is an offender—for example, hiding the knife which the third party used in a stabbing. For that purpose it is necessary to prove the conviction, or it may be necessary to prove the conviction, of the third party, to show that he was an offender. The exact seriousness of what he did will not then be in issue at all.

Having said that, I want to say that really I have done my best to dispose of the amendment, which I think is based upon the confusion of thought which I have tried to expose. If the seriousness of the offence were in issue, then clearly, either by the means suggested in the amendment or some other means—and probably by some other means—it would be necessary to show how serious the offence was. I hope that, in saying that, I have persuaded enough of your Lordships to show that this amendment, although it is intended for a perfectly respectable purpose, is in fact misconceived and ought not to be pressed.

Lord Harmar-Nicholls

Following the courageous example of the noble Baroness speaking as a magistrate, I wonder if I, again as a magistrate, may add a reaction to this amendment. I have always looked upon the processes for getting justice, and the machinery for getting it, as a series of sieves. One has the magistrates, who provide the first stage. The case goes through that stage, then it gets to a higher court, and eventually it gets to what will be the final one, where the final decision is taken as to what, in the ultimate, the punishment will be. I should have thought that one must take the judgment of the lower "sieve" as accurate, having taken into account all the evidence, rather than having to have all the evidence repeated again.

The amendment moved by the noble Lord, Lord Mishcon, asks for the transcript of the defence plea. The transcript of the defence plea must be partial. If I am ever in trouble, I want to be defended by somebody who is partial in my direction. So the transcript must be partial. I should have thought that if, when the final decision is going to be given, one has the transcript of the defence, then, in fairness, it is absolutely right that one should have the transcript of the prosecution.

The defence is there, defending whoever it is who is in trouble; but the prosecution is there, looking after the interests of the public at large. Often the public at large are disconcerted when the eventual outcome from certain courts of appeal does not seem to reflect what the public at large feel is adequate in the circumstances. So, if we are to have confidence in the various "sieves", as I describe them, I do not think that at the last stage we ought to give this preferential treatment of admitting the full transcript for the defence where the full transcript, if ever there is one, of the prosecution is not there to balance it out.

Lord Mishcon

I am sure that the noble Lord will forgive me if I adopt the phrase of the noble and learned Lord the Lord Chancellor and say that I think there is some confusion of thought here. We are not, of course, dealing in any way with the case of the prosecution. We are dealing here with the summary of what is said in mitigation after conviction, and in that regard, according to our procedures, it is not our practice for prosecuting counsel to plead for a certain sentence or to answer any plea in mitigation that may have been made unless there is an error of fact which he corrects in order to enable the judge to know precisely what are the true facts.

Let me return to the theme of the noble and learned Lord the Lord Chancellor. He referred us, quite rightly, to Clause 71 and said that the provisions of Clause 72 were supplementary to those of Clause 71. Perhaps he would be kind enough—and I shall sit down immediately after I have asked this question—to refer the Committee to that part of Clause 71 which says that the evidence of the conviction in a certain case of a person other than the accused, is going to be limited in any proceedings whatever—and Clause 71 begins, "In any proceedings"—to the mere fact of his convicton, and that there is no relevance whatever, as is shown by this clause, to any question of how he committed it or what was said in mitigation. I can see no limitation at all in Clause 71 in respect of the matters to which the noble and learned Lord said the clause was limited. I may be wrong, and, if so, I shall be grateful if the noble and leaned Lord will put me right.

The Lord Chancellor

I hesitate to do so because I hope that I am right. We are dealing with matters of very considerable complexity and technicality. The best advice that I could get from those advising me was that the only conceivable case where the seriousness of the third party's previous offence could come into question by reason of Clause 71 was where he was called as a witness and the issue arose as to his credibility, and he was cross-examined to the effect, "Were you not, on 14th January 1987, convicted of stealing from a Woolworth's shop?" Then he would be entitled to give evidence himself as to the seriousness or otherwise of the offence, and he would be able, of course, if it became sufficiently important for both the defendant in the case under trial and for the witness, either to call for or refer to the circumstances of the offence.

However, that is an extremely unlikely situation to arise for the purposes of these amendments, because it is really simply to get round the decision of Hollington v. Hewthorn as to the hearsay rule, which would otherwise have involved some wretched policeman, who probably cannot be found, giving evidence of the conviction and saying that he was present when that man was convicted. It is really to get round the hearsay rule and to prove the fact of the conviction and not the seriousness of the offence which was committed. But there is that conceivable possibility which I am advised could conceivably arise. I have some new instructions; I am very much obliged. Clause 71 states that: the fact that a person other than the accused has been convicted …shall be admissible". This does not relate to the seriousness or otherwise of the circumstances of the offence. I think that is really only a repetition of what I have already said.

Before the noble Lord, Lord Mishcon, rises, may I say, for the convenience of the Committee, that when we have concluded this little amendment—and I am not trying to hurry it in any way—I shall move that the House be resumed in order to take the Statement which is due to be delivered. I hope that is convenient.

Lord Mishcon

I am most grateful to the noble and learned Lord for answering my question, because he has answered it in the way in which I anticipated. There can be a very distinct relevance as regards the evidence of this conviction. Prosecuting counsel will, in many cases, want to use this in order to attack the credibility of a witness. The noble and learned Lord said, with an imagination which I admired so much because it was so extensive, that when such a witness has put to him in the witness box the question: "Were you not convicted of burglary on 4th June 1980?", the whole of the criminal proceedings will then be adjourned in order that he can travel to the court that originally convicted him and get all the necessary documentation to show that in fact the plea in mitigation was that he was in very necessitous circumstances at the time and was suffering from a terrific illness, and that the judge had the greatest sympathy with him. All those matters will presumably, according to the noble and learned Lord, be very easy for him to bring before the court within half an hour in order to upset the questions asked in cross-examination.

What the judge will do on that occasion is this. He will say, "You have brought the evidence of the conviction, but before you go on I think that in justice you ought to have a look at the documents which I have, because these documents have enabled me to admit the evidence of the conviction. I have here a summary or a transcript of the plea in mitigation and the remarks of the sentencing judge. I would not want you to be unfair to this witness". That is what we are protecting. If I may say so, that is not what one would have inferred from the remarks originally made by the noble and learned Lord, but I am sure that he made them with his usual good faith. I regard this, as I believe noble and learned Lords do, as a matter of some importance, and purely upon the principle of the matter I think that the Committee ought to express its view.

The Lord Chancellor

I think we are becoming rather unreal. Let us assume that Clause 71 is not passed and that Clause 72 is not passed, and that, therefore, the need for the amendment—if there be a need for it—does not arise. Let us conceive of a trial exactly in the terms just postulated by the noble Lord, Lord Mishcon. What would happen in fact is that the prosecution would have the record of the conviction in the form of a certified copy and would put to the witness, even now and under the existing law, "Were you not convicted of such-and-such an offence on such-and-such a day?" As it goes to credibility, if the witness said, "No", then the prosecuting counsel would in fact be bound, because it would be cross-examination as to credit only; and if the witness said, "Yes"—which is probably what he would do—he would probably not wish to put a lot of detail before the prosecuting counsel went on with his cross-examination because in fact the issue, even there, would basically be the fact of conviction. The last thing that the trial judge would wish or desire, or allow, would be a re-trail of the old case. In my view this is so imaginary.

Of course I do not resist any attempt to call a Division in the circumstances and I certainly did not intend to mislead the Committee in any way. But I regarded it as such an unreal situation that it was hardly worth discussing when the point at issue is how you get round the decision of Hollington v. Hewthorn for the purpose of proving a conviction as part of the prosecution's case.

Lord Mishcon

The noble and learned Lord was known at the Bar—and always will be—as the advocate who would never give up and who always had an argument to address to the court which was worth listening to. His last argument was worth listening to, but I am sure he will forgive me if I say that it in no way affects the principle of what I was saying. I am sure that the noble and learned Lord would agree with any practising lawyer who has any experience of these matters that the example which I gave is a common one and not an unusual one.

3.59 p.m.

On Question, Whether the said amendment (No. 156C) shall be agreed to?

Their Lordships divided: Contents, 97; Not-Contents, 118.

DIVISION NO. 1
CONTENTS
Airedale, L. Kilmarnock, L.
Amherst, E. Kinloss, Ly.
Ardwick, L. Lawrence, L.
Attlee, E. Leatherland, L.
Aylestone, L. Listowel, E.
Banks, L. Llewelyn-Davies of Hastoe, B.
Barnett, L. Lloyd of Kilgerran, L.
Bernstein, L. Longford, E.
Beswick, L. Lovell-Davis, L.
Birk, B. Mackie of Benshie, L.
Boston of Faversham, L. McNair, L.
Bottomley, L. Mar, C.
Briginshaw, L. Mayhew, L.
Brockway, L. Milford, L.
Brooks of Tremorfa, L. Mishcon, L.
Bruce of Donington, L. Molloy, L.
Buckmaster, V. Nicol, B.
Burton of Coventry, B. Northfield, L.
Caradon, L. Oram, L.
Carmichael of Kelvingrove, L. Plant, L.
Chitnis, L. Ponsonby of Shulbrede, L. [Teller.]
Collison, L.
Cooper of Stockton Heath, L. Porritt, L.
Craigavon, V. Roberthall, L.
David, B. Rochester, L.
Dean of Beswick, L. Ross of Marnock, L.
Denning, L. Seear, B.
Diamond, L. Serota, B.
Donaldson of Kingsbridge, L. Simon, V.
Edmund-Davies, L. Somers, L.
Elwyn-Jones, L. Spens, L.
Ennals, L. Stallard, L.
Ewart-Biggs, B. Stamp, L.
Ezra, L. Stedman, B.
Foot, L. Stoddart of Swindon, L. [Teller.]
Gaitskell, B.
Gladwyn, L. Stone, L.
Glenamara, L. Strabolgi, L.
Graham of Edmonton, L. Taylor of Blackburn, L.
Grey, E. Taylor of Gryfe, L.
Hampton, L. Tordoff, L.
Hooson, L. Underhill, L.
Houghton of Sowerby, L. Wallace of Coslany, L.
Hughes, L. Walston, L.
Hunt, L. Wells-Pestell, L.
Ilchester, E. Whaddon, L.
Irving of Dartford, L. White, B.
John-Mackie, L. Wigoder, L.
Kagan, L. Young of Dartington, L.
Kennet, L.
NOT-CONTENTS
Ailesbury, M. Hylton-Foster, B.
Airey of Abingdon, B. Inglewood, L.
Alexander of Tunis, E. Ingrow, L.
Allen of Abbeydale, L. Jessel, L.
Ampthill, L. Kaberry of Adel, L.
Auckland, L. Kilmany, L.
Bauer, L. Kimberley, E.
Belhaven and Stenton, L. Lauderdale, E.
Beloff, L. Long, V. [Teller.]
Bessborough, E. Lucas of Chilworth, L.
Boardman, L. Lyell, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Broxbourne, L. Mancroft, L.
Caccia, L. Margadale, L.
Caithness, E. Marley, L.
Campbell of Alloway, L. Melville, V.
Campbell of Croy, L. Merrivale, L.
Carnegy of Lour, B. Mersey, V.
Cathcart, E. Milverton, L.
Cayzer, L. Molson, L.
Chelmer, L. Montgomery of Alamein, V.
Clitheroe, L. Mottistone, L.
Cockfield, L. Mowbray and Stourton, L.
Coleraine, L. Murton of Lindisfarne, L.
Constantine of Stanmore, L. Northchurch, B.
Cork and Orrery, E. Nugent of Guildford, L.
Craigton, L. O'Brien of Lothbury, L.
Cullen of Ashboume, L. Onslow, E.
Daventry, V. Orkney, E.
Davidson, V. Orr-Ewing, L.
De Freyne, L. Plummer of St. Marylebone, L.
De La Warr, E.
Denham, L. [Teller.] Portland, D.
Dilhorne, V. Renton, L.
Donegall, M. Rochdale, V.
Dormer, L. St. Aldwyn, E.
Drumalbyn, L. St. Davids, V.
Duncan-Sandys, L. Saint Oswald, L.
Dundee, E. Selkirk, E.
Ebbisham, L. Sempill, Ly.
Eccles, V. Sharples, B.
Ellenborough, L. Skelmersdale, L.
Elliot of Harwood, B. Stanley of Alderley, L.
Elton, L. Strathcarron, L.
Exeter, Bp. Strathcona and Mount Royal, L.
Faithfull, B.
Fanshawe of Richmond, L. Sudeley, L.
Ferrier, L. Swansea, L.
Gisborough, L. Terrington, L.
Glanusk, L. Teviot, L.
Glenarthur, L. Thorneycroft, L.
Granville of Eye, L. Tranmire, L.
Greenway, L. Trumpington, B.
Gridley, L. Vaizey, L.
Hailsham of Saint Vaux of Harrowden, L.
Marylebone, L. Vickers, B.
Harmar-Nicholls, L. Vivian, L.
Home of the Hirsel, L. Westbury, L.
Hood, V. Whitelaw, V.
Hornsby-Smith, B. Wise, L.
Hunter of Newington, L.

Resolved in the negative, and amendment disagreed to accordingly.

The Lord Chancellor

As I indicated in my last remarks, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.