§ 8.12 p.m.
§ Lord Cameron of Lochbroom
My Lords, I beg to move that the Bill be now read a second time.
This Bill is the Government's response to the Scottish Law Commission's Report on Corroboration, Hearsay and Related Matters. The report is part of the commission's consideration of the law of evidence included in its first programnme of law reform. The report was published in May of last year. Those noble Lords who have had an opportunity to study it will have been relieved, I imagine, to see that it was somewhat thinner than the last report which we had to consider. I refer of course to the report on diligence and debtor protection. I should, however, say to noble Lords that in considering the Bill before us today we are nontheless dealing with what I believe are important reforms of the law. I must record my thanks to the Law Commission for the careful work that has gone into the production of its report. The report itself takes account of views submitted to the Scottish Law Commission as part of its usual wide consultation process. When the report was submitted to me I also arranged for consultation to be carried out on my behalf. That consultation asked for views on the commission's main proposals, which were to abolish in civil proceedings the requirement for corroboration and the rule against hearsay. I should take again this opportunity to express my appreciation of the efforts of those who submitted comments whether to the commission or more recently to me. The Bill before us today has benefited considerably.
1541 The proposals made by the commission in its report are based on two guiding principles: first, that the law should be simplified to the greatest degree consistent with the proper functioning of a law of evidence; and, secondly, that as a general rule all evidence should be admissible unless there is good reason for it to be treated as inadmissible. I am confident that noble Lords, particularly those of us who at one time or another have practised in the courts, will agree with those principles.
I should perhaps take this early opportunity to emphasise that the Bill deals only with civil proceedings. It does not in any way affect the existing requirements on corroboration and hearsay in criminal cases.
Returning to the main principles which I have already mentioned, the commission in applying those principles to the existing law found that the requirement of corroboration and the rule against hearsay were not in the interests of justice since they presented what might be regarded as technical barriers to an otherwise good case. This Bill seeks to ensure that in general terms a court will have available to it all the relevant evidence in a particular case.
I shall now deal with the Bill's first main proposal, which is implemented in Clause 1. The proposal is to abolish the requirement for corroboration. The requirement has already been removed in important categories of case-actions for damages for personal injuries and certain classes of undefended divorce actions—and the commission considered that there were good reasons for removing the requirement altogether. This recommendation received broad support from those who were consulted.
Clause 1 removes the requirement for corroboration in civil proceedings and will therefore enable a case to be put to the court which, although it is otherwise cogent and credible, would be bound to fail in the absence of corroboration. Although there will no longer be a requirement for corroboration the court will still have to be satisfied with the evidence before it can find the fact in question proved and the burden of proof (on a balance of probabilities) discharged. The clause also removes the highly exceptional rule based at best on a doubtful doctrine whereby in actions to establish paternity, denial by the defender of a material fact, later proved to be true, may be accepted as corroboration of the pursuer's evidence.
The second main proposal relates to hearsay evidence. The commission concluded that the existing law offended against its main principles by being unduly complex and excluding potentially valuable evidence. The current rule is that hearsay evidence is generally inadmissible but is subject to certain exceptions. I agree entirely with the commission's broad conclusion. However, noble Lords who have compared the draft Bill annexed to the report and this Bill will have seen that the Government have tackled this problem in a way different from that proposed by the commission.
Briefly, the commission proposed that, while the rule against hearsay should be relaxed, a party wishing to rely on hearsay evidence might still have to convince the court that it was not reasonable or 1542 practicable to bring along the maker of the hearsay statement to give evidence. If the court were not convinced that this was so, it could refuse to admit the hearsay evidence. As an adjunct to this proposal the commission's Bill contained a notice procedure. This enabled a party to notify his opponent that he intended to rely on hearsay evidence. Unless his opponent served a counter notice objecting to the hearsay evidence he would lose his right to object to the proof itself.
It is fair to say that the proposals on hearsay gave rise to a number of substantial comments and criticisms. There were those who considered that the rules on hearsay should remain. As I have already said, however, I am convinced that some reform is needed. Other commentators were of the view that, while there should be reform of the law, the proposal to allow the courts to retain a power to refuse to admit hearsay evidence together with the associated notice procedure could arguably have the effect of simply reintroducing the rule against hearsay. I have found myself persuaded by this argument.
The Bill therefore adopts the direct approach of simply abolishing the rule against hearsay and Clause 2(1)(a) provides that evidence cannot be excluded solely on the grounds that it is hearsay. I should make it clear that this leaves untouched any other means whereby evidence might be regarded as inadmissible. For example, the evidence might be considered to be irrelevant and could be excluded on that ground.
The clause also makes it clear in paragraph (a) that the court retains its power to attach due weight to the hearsay evidence led before it. It is important to keep this in mind. The Bill does not in any way erode the court's powers to consider and evaluate evidence. It simply seeks to ensure that potentially valuable evidence is not lost to the court resulting in injustice to any of the parties.
While we are dealing with hearsay evidence I should perhaps mention that in letting me have his views on the commission's proposals the Lord President of the Court of Session indicated that civil juries in Court of Session cases might have some difficulties in evaluating hearsay evidence.
Given that juries do not give reasons in reaching their verdicts, unlike judges sitting alone, and in particular do not set out their evaluation of evidence as do judges in such cases, I appreciate the problem. It seems to me, moreover, that in view of the very small number of cases heard by civil juries in the Court of Session—only four in 1985, for example—there is room for discussion on whether the use of juries in civil proceedings should be abolished as has already been done for the sheriff courts. I intend to consider this matter further but I shall of course consult interested parties before aiming at any conclusions. Much of the remainder of the Bill in Clauses 3 to 8 deals with matters related to the main proposals on corroboration and hearsay.
Clause 3 deals with prior statements. At present the credibility of a witness can be attacked by reference to a different version of evidence given by him on another occasion. However, the witness's credibility cannot be supported by reference to previous statements consistent with his evidence in the witness 1543 box. The Bill corrects this anomaly by allowing previous statements to be used for the purpose of attacking or supporting credibility. An important exception to this broad rule is made for statements contained in precognitions, which are of course simply accounts prepared by another person of the evidence likely to be available from a witness. This clause when read with the definition of "statement" in Clause 9, which excludes a statement in a precognition, makes clear that precognitions cannot be used to attack or support credibility.
Clause 4 of the Bill ensures that the fact that a person has been present in court during the proceedings does not preclude him from being called or recalled to give evidence to clarify hearsay evidence admitted under Clause 2. Clause 5 makes important reforms in respect of the proving of documents. I think we are aware of difficulties encountered by parties and their legal advisers in having to bring to court witnesses to speak simply to the fact that they were involved in the preparation of documents which are part of the productions of a case. This can at times lead to unnecessary delay and expense. This clause permits a document of a business or undertaking and any statement in that document to be proved in court without the need for a witness to speak to it.
Clause 6 will also assist someone who has to rely on documentary evidence. It enables a copy document, duly authenticated, to be admitted and treated for evidential purposes as if it were the original. In both Clauses 5 and 6 the Bill retains the power of the court to direct that a document should be spoken to by a witness or that an original document should be produced. This is important to enable an opposing party to challenge or inquire into the document's origin or authenticity.
Clause 7 deals with a potential problem, although the commission noted that the particular problem does not seem to have arisen in Scotland. It is this: in civil proceedings it may be necessary to prove that a particular record does not exist. This clause admits the evidence of an officer of a business or undertaking as to the absence of a record without the need to produce the existing records. Without such a provision it would be necessary to indulge in the wasteful exercise of producing and examining all the records of an organisation simply to establish that there is no relevant entry.
Clause 8 clarifies and restates the law where actions on family relationships are concerned. In broad terms my Bill retains the important rule that in such actions it is necessary for the pursuer to establish the grounds of action before he or she can be successful, whether or not the action is defended. In addition the evidence to establish the grounds of action must come, at least partly, from a source other than a party to the marriage.
Noble Lords will see that this clause gives the Lord Advocate power to make an order which would disapply the requirement for evidence to come from another source. I hope noble Lords will agree that it is right that the Bill should be capable of reflecting the social and legal requirements of the day, which is the intention behind this power. I assure noble Lords 1544 that Parliament will have an opportunity to discuss any change of this nature since it is provided that the order is to be made by affirmative resolution procedure.
The remaining clauses are formal but I should draw noble Lords' attention to the important definition in Clause 9 of "civil proceedings". Essentially the Bill applies to proceedings before the ordinary courts of law. The Bill does not specify what proceedings are to be regarded as civil. This will be a question for determination by the courts in each particular case. Noble Lords will notice, however, that the Bill makes specific reference to hearings under Section 42 of the Social Work (Scotland) Act 1968. This is to put beyond doubt that such hearings are civil proceedings for the purposes of the Bill.
The Bill contains what some may regard as radical changes to the law of civil evidence. I do not dissent from that. However, I do not see there being as a result a marked change in the manner in which civil proceedings are dealt with from an evidential viewpoint. Although parties will be able to rely upon uncorroborated evidence and also hearsay evidence, it seems to me that prudent legal advisers will continue to seek to establish their cases beyond peradventure. On that basis I would expect that they will continue to lead corroborative evidence, where it is available, and to bring the makers of statements before the courts whenever possible in order that the weightiest evidence can be adduced for proof of their case.
I do not see this Bill as being a charter for lazy lawyers, if any such being exists. What this Bill will do is ensure that the courts will have before them as much relevant evidence as possible. As a result neither party to an action will suffer injustice simply because potentially valuable evidence is excluded thus rendering an otherwise good case either incapable of prosecution or doomed to failure. For those reasons, I have no hesitation in commending the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Cameron of Lochbroom.)
§ 8.25 p.m.
§ Lord Morton of Shuna
My Lords, this Bill should be welcomed, and in general and as so often I should like to pay tribute to the work of the Scottish Law Commission. I should also like to congratulate the noble and learned Lord the Lord Advocate on the alterations he has made to the Bill, to the extent that he has taken out the provisions about notice which were just too complicated to be workable. To that extent it is a better Bill than even the Bill of the Scottish Law Commission.
In civil cases where in general the standard of proof is probability rather than certainty, it is proper that the law about evidence should be as simple as possible while retaining the law of evidence. The rules about corroboration so far as they remain can operate as an impediment to justice and it is good to see them on the way out. In general, also, the law as it has developed in relation to hearsay has become technical, cumbersome and an impediment to justice. In everyday life we all take important decisions on hearsay evidence. We do not rely on direct evidence. 1545 The kind of people who become jurors decide things on hearsay evidence. With all respect to the noble and learned Lord, I had difficulty in following his reasoning on this matter. I had never thought that lawyers are any better than anybody else at finding out who is telling the truth and what evidence one can rely on. But so be it.
It is wrong that the courts should be prevented from considering hearsay evidence as long as its cogency and reliability remain open for testing. On the detail of the Bill, I suggest that there is an error in the transfer to the noble and learned Lord's department from the commission in omitting arbitrations and tribunals. It is ridiculous to keep corroboration for arbitrations and tribunals and not have it in the more formal court.
There is some indication that the noble and learned Lord thinks the same way. I hope so. If he does not, one is left in total confusion because arbitrations and tribunals are to be found in the definitions in the Law Reform (Miscellaneous Provisions) (Scotland) Acts which are being repealed, and therefore one would leave those who have to deal with arbitrations with no idea of what the law of evidence to be applied was.
Clause 2(3) causes some difficulty. I am surprised that this passage remains, considering what the noble and learned Lord said about legislation yesterday. Clause 2(3) says:For the purposes of subsection (1)(b) above, evidence which is, in accordance with the law and practice for the time being, given by means of affidavit shall not be treated as 'a statement made otherwise than in the course of the proof except if and in so far as that evidence relates to the content of a statement made by a person other than the maker of the affidavit".That is not the easiest thing to understand. If I understand it correctly, it means that if I make an affidavit it is to be ignored if I say, "I saw this thing happen"; but if I say, "The noble Lord, Lord Glenarthur, told me he saw it happen" it would be admissible. That really cannot be what is intended, and perhaps that needs clearing up. The first phrase in subsection (3) seems to me to be totally unnecessary.
The last and important point is in regard to the coming into force. Clause 10(2) says:This Act shall apply to proceedings whether commenced before or after the date of its coming into force (but not to proceedings in which the proof has, before that date, been concluded).".That surely should be "commenced", because otherwise one could have one-half of a proof conducted on one rule of evidence and the other half on the new rule of evidence, which must be wrong.
Subject to those rather technical criticisms, I warmly welcome the Bill and hope that it has a smooth and uncontentious passage through the next stage.
§ Lord Wilson of Langside
My Lords, from these Benches too we welcome this Bill. It is not in any spirit of the animal whom the noble and learned Lord the Lord Advocate described as the lazy lawyer, which he thought was a rare animal. I am not quite so sure that I take so sanguine a view. But in any event, whatever the zoological position may be, it is 1546 not in that spirit that I say that I shall detain your Lordships I hope for even less time than did the noble Lord, Lord Morton of Shuna.
It is a diverting circumstance that in the recent press publicity surrounding the case of the young British Army officer who was charged with smuggling drugs into Sweden anxieties were expressed from many corners of the field about the possibility that the young man would not get a fair trial. Among other things, it was widely said that one of the reasons for that was that in Sweden hearsay evidence was admissible. It might be as well that I should not tonight, particularly at this late hour, pursue any further reflections on this acute understanding in the public mind about hearsay evidence.
The noble and learned Lord the Lord Advocate said that it might be regarded as a radical reform. It is not really so very radical. It is true that perhaps way back before the Second World War when I was first involved with the law in any way at all, we regarded the rules of hearsay and the rules of corroboration, and so on, as something of sacred cows; but I think those kind of days are all gone.
We are indeed well served by the Scottish Law Commission in this report in particular, as in so many others, which has put the matter so well into perspective. In principle, I can see no possible objection at all to these reforms. Whether or not we may want to look at it in any great detail at Committee is a matter which no doubt we shall all be thinking about.
I said I would take even less time than the noble Lord, Lord Morton of Shuna. That is always a silly sort of thing to say because whenever you say that you are giving a hostage to fortune, as people are inclined to say. But I see that I have just succeeded, and I join with him in wishing the Bill well.
§ 8.34 p.m.
The Marquess of Ailsa
My Lords, I hope your Lordships will forgive me as a layman for intervening in this learned debate. My experience with the Scottish courts, civil and criminal, is slight, but such as it is it leads me to slight concern about this Bill. I have known of a dean of faculty lie in court. I know of false evidence being given under oath. So the idea of hearsay being readily acceptable in a court gives me some cause for concern. I am not aware that in any place hearsay is defined. Where does hearsay stop and gossip begin? This worries me because while we hear that it is fine, when you get into court it is slightly different.
Going to Clause 4, the calling of additional witnesses, are we not slightly getting into the Perry Mason situation by which you have a court which has gone through all its procedures until the last moment and then defence counsel produces his wonderful hidden witness? That is an area that needs to be looked at.
I was equally worried from my limited experience in that I gathered the impression that the concern of litigants' legal advisers is to win their case for them really regardless of truth or justice. They will go to any lengths and put any pressure on persons to achieve this. I just wonder whether what seems like a simple and useful Bill is not really a wolf in sheep's 1547 clothing which will add to the enjoyable dripping roast that exists within litigants' costs in Scotland.
§ 8.37 p.m.
§ Lord Cameron of Lochbroom
My Lords, I am grateful to the noble Lord opposite and to the noble and learned Lord, Lord Wilson of Langside, for the welcome that they have given to this Bill. I can say to my noble friend Lord Ailsa that we did not proceed with this lightly, as the noble Marquess will understand. It proceeds upon a carefully argued report of the Scottish Law Commission, and, as I think I explained in opening, upon comments and criticism received both by the Law Commission and by myself. I can recommend to my noble friend a reading of the Law Commission report which I think would still some of his fears about the value of hearsay evidence.
Perhaps I may say—and this takes up a point that the noble Lord opposite made—that tribunals have for a number of years been perfectly accustomed to proceed by use of hearsay evidence. It has been a valuable capacity for them. Having sat as a chairman of tribunals, I am well aware of the value of hearsay evidence in reaching a just conclusion to the issues between parties. Accordingly, I assure my noble friend that this matter had been carefully thought out before these proposals were brought before the House.
I would also say in relation to his point under Clause 4 regarding the recall of a witness that this is only done where the court grants leave. That is to say, the court has to be satisfied that there is good reason for the recall. It is generally for the purpose of clarifying any hearsay evidence that may have been given earlier in the course of the proof.
I should like to deal with the points raised by the noble Lord, Lord Morton of Shuna. The first was the issue of tribunals and arbitrations. As presently drafted the Bill does not apply to proceedings before tribunals or arbitrations because they are commonly regulated by their own rules or by agreement of the parties who wish to go to arbitration. The noble Lord opposite will be aware of some of the tribunal rules which effectively dispense with the rules of evidence. I accept that it may be advisable to ensure that those who wish to enter into an arbitration agreement have the benefit of the relaxation of the evidential requirements unless they specifically choose otherwise. However, I shall consider the point further before Committee stage.
The second point raised by the noble Lord, Lord Morton of Shuna, related to Clause 2(3). I should like to look further at the way in which the subsection is drafted, but the provision is based on a policy which seeks to preserve the position under existing law and practice whereby evidence can come forward by way of affidavit in particular classes of case. However, I accept the fact that it may be said to create a somewhat anomalous distinction between such cases as the noble Lord pointed out and other cases to which the general admissibility of statements under the earlier part of the clause will apply. I shall look again at that matter. It is useful to have the comments of the noble Lord.
1548 I note what he said as regards the opening words of Clause 3. I may well have to consider an amendment in that regard as it may be considered to be otiose.
The noble Lord also raised the matter of commencement, and I accept that we may not yet have the Bill right in respect of that. I shall certainly look at it again before the Committee stage. I am grateful for the points which have been raised by the noble Lord, Lord Morton of Shuna, in that connection.
In response to the comments made by the noble and learned Lord, Lord Wilson, I should like to point out that I referred to lazy lawyers because one has experience of the way in which the provision relaxing the corroboration rule in personal injuries actions has operated. It has meant that parties have led as much evidence as possible, regardless of the rule, in order to satisfy the court as to the cogency of their case by the best evidence that they can produce. It was for that reason that I made reference to the lazy lawyer.
Dealing with the point raised in relation to Swedish justice, I hoped that in opening the debate I had made clear the fact that here we are not dealing with evidence in criminal cases. The case to which the noble and learned Lord was referring was a criminal case. The Bill deals only with civil evidence and I hope that I have made clear the fact that it is not intended to cover, nor should it be thought to cover, evidence in criminal cases in Scotland.
I am grateful to noble Lords for the assistance given in this short debate, and I commend the Bill to the House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.