§ House again in Committee.
§ Clauses 17 to 20 agreed to.
§ Clause 21 [First-;hand hearsay]:
§ On Question, Whether Clause 21 shall stand part of the Bill?
§ Lord Hutchinson of Lullington
I rise in this packed Chamber to oppose the Question, That Clause 21 shall stand part of the Bill. We oppose this clause as being far too broadly drawn, removing at a stroke some essential safeguards in the criminal process. To mitigate the rule against hearsay and permitting documentary hearsay evidence is entirely sensible and acceptable. To destroy the rule altogether is to damage irretrievably the fairness of the criminal trial. What the clause sets out to do is to make a statement by a person in any document admissible evidence in the trial of any indictable offence—that is, in the magistrates' courts or in the Crown Courts—admissible as to the truth of what is said in the document. The only qualification is that the evidence must be of facts which would be admissible if given orally. Such evidence is to be called "first-hand hearsay" and the document when put in evidence is to speak for itself.
I give three short examples, so far as I can see, of what the result of this clause would be where the maker of the document will not appear as a witness at all. A letter is found containing the statement, "X stayed late at the office on 1st October and I gave him the keys of the safe"—admissible as to the truth of its contents when X is charged with theft.
In a notebook of a police constable an entry is found, "Saw X loitering round the public lavatory on three separate days this week"—admissible without the police constable coming to the magistrates' court when X is charged with importuning for immoral purposes at that lavatory.
Thirdly, a copy of the minutes of a meeting of a company with an annotation on it by the chairman, "X said he knew some of the statements in the prospectus were false. Not surprising, as he drafted it!"—admissible when X is charged with fraud. None of these statements can be cross-examined. How could a defendant establish that it was the maker of the statement who in fact stayed behind with the keys of the office? How could he dispute the identification by the policeman outside the lavatory? How could he show that the chairman was lying, mistaken, biased or exculpating himself; that he never drafted anything at all? Were there later meetings which altered the records of the earlier one? What was the emotional state of the person who made the entry in the diary at the time?
75 On the other hand, looking at it from the prosecution point of view, how could the prosecution deal with documents carefully prepared before an offence to put the blame on others or to provide a perfect alibi? A diary entry, "George arrived from London on the five o'clock train", the offence having taken place in London at a quarter past five, that is very helpful evidence to the defendant.
In fraud cases, false copy letters, false memoranda and false diary entries will now be legion and all admissible under this clause. Indeed what about false confessions by other accused? Confessions by the accused are accepted in this clause, but what about false confessions by other people who will not come to court and cannot be found? Why do we have now a general rule against hearsay evidence in documents?
The adversarial system is based, I suggest, on the principle that untested evidence is inherently unreliable; that no person should be convicted on untested evidence is one of the guarantees of a fair trial. Our system depends on the primacy of oral testimony, as the noble and learned Lord, Lord Hailsham, so strongly averred in our debates on the Roskill Report. The method of testing such evidence is cross-examination, which lies at the very heart of the whole Anglo-American trial system. Without cross-examination, without testing, a hearsay statement is exposed to mistakes of every kind, mistakes of perception, of observation, honest mistakes on dates, descriptions, identity, sight, hearing, to mistakes of omission and to the possibility of course, of concoction, of bias and of improper motive.
Rules are of course only rules. If they become out of date, if they are overtaken by changes in technology and the mere march of time, they must be changed. But in so doing, as we observed in our debate earlier this afternoon, the fundamentals of our criminal process, whatever may be the origin of them, must be preserved and must be defended, even if it is inconvenient to those who want to streamline the route to conviction.
Open justice, the onus of proof, conviction only on tested evidence, the protection against self-incrimination, the integrity of the jury, surely all of these things are matters worthy of some inconvenience in the system. Of course the general rule, as with all other rules, must be tempered with common sense. In fraud trials the documentation which swamps the proceedings—bank documents, company documents, share certificates—must be made admissible by procedure that avoids calling unnecessary oral evidence, bringing witnesses from abroad, bringing witnesses from hospital and so on.
That was recognised by all those who participated in the long debates on the Police and Criminal Evidence Bill. Sections 68 and 69 of that Bill were the outcome of those debates, and those provisions regarding proof of business documents are now already to be superseded by Clause 22 of this Bill. We shall no doubt debate that clause later. The clause we are debating now goes much further and is said to be based on Chapter 5 of the Roskill Report. I am very glad to see that the noble and learned Lord, Lord 76 Roskill, is here, although I am in some trepidation of saying anything which might not be strictly accurate in his presence.
However, I suggest that the clauses in this Bill go further than the recommendations in the Roskill Report. The Roskill Report recommended that in fraud trials only there should be a discretionary power in the judge to allow such documents in evidence once the party producing them had explained to the court their nature and their source: that is, that there should be an inclusionary discretion in the judge. In other words, it would be for the judge to say, "Yes, in this case this document shall be admitted."
However, in this Bill under this clause the documents are to become admissible automatically, and the judge, and indeed the magistrate, will only have a discretion to exclude them—in other words, it is an exclusionary discretion. The result of that is that the onus will be on the accused person to establish that the document should not be allowed in under the provisions of Clause 23 which follows.
However, the Roskill recommendations themselves were open to serious criticism, I would suggest. I refer to the key paragraph, which is the one on which this clause is supposed to be based: paragraph 5.36 of the report. That paragraph, reading only the relevant matters, says:If one of the parties intends seriously to challenge the authenticity of a document and satisfies the trial judge at the preparatory hearings that he has good reason for so doing, he must, of course, be allowed to make that challenge and the strict requirements of proof should not be relaxed. But where his challenge is without foundation the trial judge at the preparatory hearings should have the power to permit the document to be given in evidence without formal proof.The attitude there is that it should be the judge's discretion—that is what we find in this Bill—which replaces the rule of law that hearsay evidence should not be admissible. The judge decides whether the challenge is a serious one. He decides whether the challenge is without foundation and he permits the document to be let in or not let in. Without, I hope, any offence to the noble and learned Lord, we are reaching the position in this recommendation followed in the Bill that the judge's role becomes really that of the inquisitor instead of the independent referee. He becomes the inquisitor; he is the person who before the trial starts has to make up his mind whether what the defence are saying is without foundation or whether it is serious, and so on. Indeed, it is only a short step from there to defence by judicial consent.
The paragraph goes on:In exercising the discretionary power in the case of a document sought to be put in by the prosecution in this way the judge would need to be careful to ensure there was no unfairness to the defence. It may be suggested that such a change in the law might encourage the fabrication of documents by defendants. Even if this be a risk, we consider the risk small. If documents are fabricated and the fabrication is exposed, the effect is likely to be traumatic upon the fate of those on whose behalf the fabrication has been perpetrated. We think that should be a sufficient deterrent to fabrication.That passage is interesting, because it never seems to have occurred to the Roskill Committee that the prosecution witness can fabricate evidence. Indeed, in many cases prosecution witnesses have been shown to have fabricated documents. Again it would seem to be somewhat naive, if I may say so, to suggest that 77 the fear of exposure in a criminal trial will prevent fabrication or deceit. Protection against the putting in of these document in wrong circumstances is to be afforded by the terms of Schedule 2 to this Bill. That permits evidence to be called as to the credibility of the maker of the document and once again, only with the leave of the judge, as to any matter which could have been put in cross-examination if the maker of the document had been called. I have to say that that protection is really window dressing because it is the reaction and the demeanour of the witness when tested which may cause doubt in a jury's mind as to his reliability. It is not the material which happens to be in the advocate's hand which is going to make any difference.
Finally, much play is made of the fact that the rules have been relaxed in civil proceedings. But the criminal courts are concerned with offences and penalties and not with negligence and damages; with the liberty of the subject and with proof beyond reasonable doubt and not with proof on the balance of probabilities. The distinction between the civil and the criminal has been spelt out with clarity in a very recent case of Andrews by the noble and learned Lord, Lord Ackner, in a case which is reported in the Weekly Law Reports of this year, volume 2, at page 413.
The question in that case was whether hearsay evidence should be given of a victim's naming to a third party the person who in fact struck the blow two months before he, the victim, died. He therefore could not give evidence at the trial, and the test adopted by the noble and learned Lord was one which had been described by the noble and learned Lord, Lord Wilberforce, in a previous case as an entirely valid reason for exclusion of such evidence; namely, where the circumstances were such as to exclude any possibility of concoction or fabrication. The noble and learned Lord, Lord Ackner, said this:Whatever may he the position in civil proceedings, to use this doctrine as a device to avoid calling, when he is available, the maker of a statement and thus deprive the defendant of the opportunity to cross-examine, would not be consistent with the fundamental duty of the prosecution to produce all material facts to ensure that justice is done.That is what we are discussing in the clause; whether justice is done.
If the clause stands, the next step will be to admit not only documentary first-hand hearsay but oral first-hand hearsay. I can indeed hear the noble and learned Lord, Lord Hailsham, arguing forcibly that the admissibility of evidence cannot be decided on whether the witness recorded the fact on the back of an envelope or recorded it in the back of his mind. The clause, if left part of the Bill, will lead, I suggest, to trial by document in proceedings presided over by an inquisitorial judge.
Your Lordships are not deciding whether to keep an outmoded rule or technical protection for the guilty. What you are deciding is the protection of the integrity of the criminal trial in Crown and magistrates' courts and, I suggest, the preservation of the essential fairness which has been the hallmark of that process for so long; if I can put it quite simply, whether justice is ensured to be done.
I submit to the Committee that the clause, which on the face of it makes a statement by a person in a 78 document admissible of the truth of what that statement says (in any document created at any time and produced without the maker of it), is going far too far in sweeping away a rule which prevents generally hearsay evidence.
There is every reason for seeing that documents in fraud cases and in other cases, created by people who have a duty to create them and who have created them as a result of inquiries that they have made from people who have knowledge and so on, should be made admissible without all the ludicrous nonsense of bringing witnesses to court to prove every stage. That was provided for in the Police and Criminal Evidence Act 1984. We debated it at length. Those clauses are excellent and, in my submission, provide a perfectly good basis for dealing with those cases with which the Roskill Report dealt.
As a member of the Criminal Bar Association and an ex-chairman of it, long before the Roskill Report was ever brought into existence, I can say that we have continually asked for a reform of the law on this very matter. Let no-one in the Committee think that I and others who put forward the amendment are dinosaurs, dyed-in-the-wool, wanting to keep old ideas for our own personal advantage and so on. The young people who work at the coalface in the criminal bar—members of both the Criminal Bar Association and the Law Society—are against this enormous enlargement of the doing away of the hearsay rule.
Therefore, I ask members of the Committee to look seriously at the breadth of the clause. Clauses 22, 23 and 24 may be a different matter and may be amendable in detail. I suggest that Clause 21 goes far too far and that the Bill would be much better without it.
§ Lord Irvine of Lairg
I feel that the clause is subject to grave question. At first sight it represents a conspicuous erosion of the citizen's right when accused of an offence to test the evidence against him by cross-examination. There must also be serious questions over whether it is not administratively unworkable and as capable of being manipulated by an unmeritorious defendant as of causing injustice to a meritorious defendant.
The first principle must surely be that criminal trials, except in carefully defined circumstances where special considerations apply, proceed by means of oral evidence. There really is no more important safeguard than that.
I agree with the noble Lord, Lord Hutchinson of Lullington. There is no advocate who has not experienced countless cases where a story that seemed consistent and watertight when set down on paper was destroyed by a proper and skilful cross-examination. Trials conducted on paper, on the whole, must represent second-rate justice.
Contrast this with Clause 21 which in effect says that a person's evidence in a criminal trial may be given in written form! There is no protection, apart from the discretion of the court under Clause 23, to exclude statements in the interests of justice having regard to the matters that are listed in Clause 23(2).
79 That safeguard is no doubt better than nothing; but this is surely a case of the broadest of broad brushes being applied by the proposed legislation to an area of law where what is required is careful definition. Surely, the correct approach is for Parliament to specify those situations where there is some identifiable and compelling reason to admit the documentary hearsay. Only where one of these reasons is made out should the hearsay be allowed in, subject to the overriding discretion of the court.
Until recently that was the approach that commended itself to the Government. Section 68 of the Police and Criminal Evidence Act 1984 allows in documentary evidence where the document is part of a record compiled by a person acting under a duty from information supplied by a person reasonably supposed to have had personal knowledge of the matters dealt with, provided that one of a number of conditions is satisfied in respect of the person who had the personal knowledge. Essentially, it must be impracticable for that person to give oral evidence because he or she is dead, ill, overseas or untraceable.
Thus, there are two crucial hurdles before documentary evidence can be allowed in under the 1984 Act: first, the requirement of a duty on the recorder of the information and of personal knowledge by the supplier of the information ensure that the information recorded is likely to be accurate and not a mere collection of speculations or jottings; and, secondly, the requirement that one of the Section 68(2) conditions be satisfied guarantees that the possibility of dispensing with oral evidence is invoked only in cases where it is really necessary to do so. There are no such preconditions in Clause 21. The circumstances which should represent conditions of admissibility are reduced to mere factors going to the exercise of the discretion of the court. This is surely to impose an unreasonable burden upon the judges and to invite a rash of appeals in cases where documents are alleged to have been improperly admitted.
I hope that we shall hear from the Minister precisely what type of nut it is that has brought forth this proposed legislative sledgehammer. I ask this question. What are the cases in which justice cannot be done without there being admitted documentary evidence that would not fall within Section 68 of the 1984 Act? If they exist, are they really such that they cannot be dealt with by some minor amendment to that section?
I recognise that fraud trials of their nature no doubt require a more liberal attitude to documentary evidence. The noble and learned Lord, Lord Roskill, has made a conspicuous contribution in this field. But Clause 21 is not confined to cases of large scale fraud; it applies across the board. My primary concern is naturally for the defendant faced with paper accusers and deprived of the opportunity to show by cross-examination that the allegations are groundless. I urge this on the Minister. The abuse may just as well be on the other side, with the prosecution prevented from probing an ostensibly plausible case for the defence.
Finally, I wonder how workable this clause will be in practice. It does nothing to provide a means of 80 determining in advance what documentary evidence will be allowed to be admitted in a particular case. What are the parties actually to do? On the one hand, if they come to court armed only with the documents they risk losing the evidence altogether if the judge rules it out. On the other hand, if they ensure that witnesses are available to give oral evidence as an alternative, why not call those witnesses in the normal way in any event? This is a problem which is most unlikely to arise under Section 68 of the 1984 Act because that is confined to cases where the choice will usually lie between documentary evidence or no evidence at all.
The clause appears to me to sweep away a great deal that has always been valued in our system of criminal justice. It should not pass into law in its present form unless a far more compelling case is made for it in all its breadth than I can possibly now conceive of. For myself I hope that the Minister, who has been so willing to bring an open mind to the questions raised by Amendments Nos. 9 and 11, will declare himself to be of like mind in relation to this amendment.
§ 8.30 p.m.
§ Lord Roskill
I am not sure. having listened to my noble friends Lord Hutchinson of Lullington and Lord Irvine of Lairg, that I ought not to begin with a plea of guilty and ask for mitigation of sentence. In point of fact I am proposing to defend this clause with all the vigour I can, supported by the noble Lord, Lord Benson, one of my colleagues on the fraud trial committee. What we recommend in connection with serious fraud cases was the unanimous recommendation of us all after looking at this problem over about two years of very hard work, having listened attentively to all the evidence from the Criminal Bar Association, from the criminal branch of the Law Society, and having tried to form a balanced and unprejudiced view of what was relevant to the question of the proper trial of fraud cases.
I must apologise to the noble Lord, Lord Hutchinson. The pangs of hunger caused me to miss the first three minutes of his speech but I shall read tomorrow what he said. I do not know how much I missed. I shall learn tomorrow. I heard him say that my noble friend and I were concerned to streamline the route to conviction. Nothing is less fair or more untrue. When I spoke in your Lordships' House in the debate on the report in February last year I ventured to say that none of us claimed omniscience. All of us recognised that what we said was capable of improvement and we hoped that there would be improvements. Purely destructive amendments are (with profound respect to the experience and learning of those who have moved them) no good. We are primarily and wholly concerned with serious fraud.
We said in the report that many of the reforms we suggested could be applied across the board. So they could, but that was without our terms of reference. I am principally concerned tonight to talk about serious fraud because even the most rabid defenders of those who are alleged to have committed serious fraud would I think accept that what matters here are not old-fashioned rules but the true path to the ascertainment of truth. As my noble friend said, rules 81 are not the masters; they are the servants. There is a very grave danger that in serious fraud cases they have been allowed to become the master.
I must be careful what I say because certain things have happened in recent weeks which make it obviously undesirable that I should repeat some of the things that were said in earlier debates both on this Bill, its predecessor and on the report itself. We were concerned to see that prosecutions were not prevented from being brought by ridiculous overlogical application of the rules of evidence and that when properly brought they were not defeated by skilful and accomplished lawyers taking technical points on the rules of evidence, designed, as was their duty, to secure the acquittal of those who were to anybody except perhaps the most enthusiastic lawyer—and sometimes to them—obviously guilty of the most serious fraud.
How do you ascertain the truth? The noble Lord, Lord Hutchinson, referred to what we had said in paragraph 536. I absolutely refuse to accept this charge of naivety. After 25 years on the Bench—some 22½ years of them as chairman or deputy-chairman of quarter sessions when he used to appear before me beyond those 25 years—and indeed fairly long experience in the Queen's Bench Division of the Criminal Division of the Court of Appeal, I hope that naivety is perhaps the last of the offences (no doubt there are many) with which I might be charged. But the point about fabrication of documents upon which he took me to task is not our own original thinking. If the noble Lord cares to look back at that great lawyer, the late professor Sir Rupert Cross, and at his magnum opus on evidence he will see the whole question of the principles of orality, to which the noble Lord, Lord Irvine, referred, discussed and, as I venture to think, demolished at some length and with irrefutable logic. In no other walk of life do people only act on oral evidence. People's characters in business and in other respects are dealt with because of what somebody has said to someone else, and of course this principle of orality goes right hack into the last century when those who were refused were not in a position to give evidence in their own defence.
I hope my record shows that I am no reformer for the sake of reform, but one has lived long enough in the law to see the dangers of "keep that going longer, it is the old rule and the safeguard" being regarded, as I said a moment ago, as the master and not the servant. That leads to the perpetuation of an inability to convict.
During our work—the noble Lord, Lord Benson, will confirm this and I shall have to be careful what I say—we were shown in confidence a considerable number of massive files on fraud. It was perfectly obvious that under the existing rules of evidence it was going to be quite impossible to obtain convictions in those cases. The noble Lord, Lord Irvine, challenged me a moment ago to produce a case where the Police and Criminal Evidence Act would not operate and it was necessary to have recourse here. I do not profess to having considered this at great length since we considered the matter some 18 months ago when we were writing the chapter which has come under so much criticism; and I plead guilty to being the author of much that 82 appears there. Let me just quote paragraph 5.10. This is a statement of the law:The evidence that a witness gives must be first-hand. If all he can recount is what another person has said, then that other person is the one who should be giving evidence and the secondhand version of the first is not acceptable. This rule, known as the hearsay rule, is applied with logical severity to documents. If a document is the record of a transaction (for example, a cheque recording an instruction to a bank to pay money to a third party), then the mere production of the cheque does not suffice to prove the transaction. The drawer of the cheque. the bank clerk, and the payee should come, for they alone can speak of the transaction. The cheque cannot speak for itself: it cannot -prove" itself.Hence the position that documents are not normally evidence in themselves: they merely support the oral evidence of live witnesses. It is they who must both identify the document and tell of the truth or otherwise of its contents".I venture to suggest to the noble Lord, Lord Irvine of Lairg, that that transaction is not one which would fall within the Police and Criminal Evidence Act, and no doubt he, with his great experience, can think of others. I am sure that other Members of the Committee can do the same. That is not a document brought into existence in pursuance of a duty.
It is common knowledge that there have been a vast number of frauds committed and perpetrated and money laundered through notorious islands which I shall not dignify by mentioning. Many of these, if they are to be brought to a successful prosecution, must involve the proof of banking transactions in those islands. Those transactions simply cannot be proved under the 1984 legislation. We went into this most carefully. This legislation is necessary to enable such transactions to be brought to book. I shall say no more on that.
§ Lord Hutchinson of Lullington
May I interrupt the noble and learned Lord, because this is an important point? In saying that this legislation is necessary he is indeed knocking at an open door, because the next clause and the one after it deal with those specific matters. The point at issue is the breadth of this clause, which does not in fact deal only with documents.
§ 8.45 p.m.
§ Lord Roskill
I am grateful to the noble Lord for the intervention. I fully appreciate the point. If he and those who support him can devise a half-way house which will meet the point which I am making, which the committee was making and which falls short of the provisions in Clause 21, I for one, and I am sure my noble friend Lord Benson, would be perfectly happy.
Of course we do not want to see anything which will involve the risk of wrongful conviction of anyone. I have never been one of those who has believed that demeanour is all important. The picture of the lynx eyed judge who can always detect truth from falsity at a glance is not one which I would ever have claimed for myself, and I do not believe it is realistic. The first thing that any appellate court ever says when you are challenging a finding of fact by a judge is, "Well, look at the contemporary documents. because it is they that matter". That is an inroad in itself into the basic principle of orality so beloved by both noble Lords.
83 If people want big frauds successfully prosecuted and brought to an end legislation is necessary, as we all found, to stop it being possible to defeat the ends of justice by technical application of the rules of evidence. I do not want to delay the Committee too long for the hour is late. I only say once again that if anyone can devise a means of achieving the result at which we aimed in the report by some other method than Clause 21 and the -ensuing clauses then I, for one, and I am sure my noble friend Lord Benson, would be the first to welcome the efforts. But a purely destructive approach to these clauses is of no avail at all. If these criminals are going to be brought to justice and technical objections are not allowed to prevail we must find a way of getting over this difficulty.
I have a few other points. The noble Lord, Lord Irvine, said that there was going to be difficulty because people would not know when they came to trial whether to call witnesses or whether they could rely on documents. I think, with profound respect to the noble Lord, that he must have overlooked one rather crucial thing in the report and in what is now the Criminal Justice Act 1987, and that is the provision of preliminary hearings. One of our main objectives in recommending—and the House accepted it—the preliminary hearing was to enable these issues to be determined in advance. I see the Minister agreeing with me. That really is not a point against these clauses.
The noble Lords both complained about judicial discretion being exclusory. These epithets "exclusory" and "inclusory" get bandied about in this field. They are no more than labels. If, as I hope, on the policy side serious fraud cases are in future only tried by judges of the necessary experience and competence to try them—and there are many such judges on the bench—I do not believe that any judge of experience would let in, to the risk of a prisoner, some document either the authenticity or genuineness of which was in doubt or was so prejudicial that it could not safely be admitted without cross-examination being available. We recommended all these safeguards in the report. I hope these clauses give effect to those safeguards and that these amendments will not succeed.
If all the amendments proposed to this part of the Bill were accepted by the Committee it would drive a coach and horses through our labours on this part of the work. I believe that everybody wants the City of London to be cleaned up. What we recommended was a series of steps—and essential steps, as recent attempts have shown beyond peradventure to be necessary—to have that cleaning up operation brought to finality by convictions and appropriate sentences.
§ Lord Benson
I share with the noble and learned Lord, Lord Roskill, the view that this proposal ought to be rejected. I do so despite the formidable array of legal talent which has proposed it. The effect of this clause is that all documents will be admitted unless the judge directs to the contrary. It is certainly a broad clause but the breadth of it is carefully preserved by the restrictions imposed by Clause 23(1).
84 I have just been engaged in a case where the total number of documents seized were between a million and a million and a half; five thousand exhibits were produced in court; between 30 and 40 witnesses were brought to court solely to prove the documents. Those witnesses were examined, as is the wont in legal matters, at extravagant length with a great many irrelevancies. It went on for weeks on end. In the result the jury were drenched in words and the real substance of the alleged crime was lost sight of. It is that sort of situation that this clause is designed to protect.
The noble Lord, Lord Hutchinson of Lullington, has said that this will be trial by documents. Yes, it will be. That is exactly what fraud cases are. They are basically trial by documents. It is the documents which prove or disprove whether the fraud has taken place, where it has taken place—because it is sometimes abroad—and when it has taken place. It is vital that all those documents should be before the court. The protection is that the documents can be challenged just as oral witnesses and oral evidence can be challenged. They can he challenged as to their source, their nature, their authenticity, the truth of what they say and the weight to be attached to them. All those things can be challenged. If they are properly challenged it is the duty of the judge in his judicial capacity to make an appropriate decision under the particular clause which provides for it.
It has been said with some emotion that the judges will become inquisitors, but I do not follow that argument. A judge has always to make decisions as between the opposing parties. When documents are challenged that is what he is appointed to do and that is what the Bill, as presently drawn, provides. I do not think it is remembered that witnesses who come before the court in trials usually do so three or four years after the event and sometimes much longer. During that time many witnesses fabricate their evidence, alter it, or their recollections become strangely hazy. However, when one has documents one can pin them down to what happened, when it happened and who prepared the documents. It is those documents which must be before the court.
It is said by the noble Lord, Lord Hutchinson of Lullington, that documents can he false. Of course they can be false, but so can oral evidence. It is important in the trial to test the authenticity of both oral evidence and the documents and it is of crucial importance that the documents should be before the court.
The Roskill Committee had strong evidence which convinced it that London is now being used as a site for fraudsters. They find it much better to base themselves in London instead of capitals abroad because the administration which we have (or had hitherto until the Criminal Justice Act 1987 and the present Bill) prevented fraud being detected and conviction attained. The committee found that fraudsters were deliberately using London because of our outdated criminal procedures, of which this is one. Happily many of them are now being corrected. However, we must ensure that London preserves its position so that fraudsters are deterred from being here, and this anachronism is one which ought to be excluded from criminal procedures.
Finally, I cannot speak with authority on the legal niceties of his matter, but it may be possible that the 85 clause can be improved. However, the throwing out of the whole clause would be a backward step and contrary to all the evidence which we on the Roskill Committee received and to what has been my own experience of fraud trials in this country and abroad.
§ 9 p.m.
The Earl of Caithness
This is an important part of the Bill, and it may be helpful if I begin by explaining a little of the thinking behind the clause.
Over the years those responsible for the development of the criminal law—both in Parliament and among the judiciary—have been understandably wary of allowing the courts to receive evidence in documentary form. The principle—and it is in itself a sensible principle—is that the courts should have the best evidence available in order to reach an informed decision about something as important as the guilt or innocence of someone accused of crime. That led to a highly restrictive rule against the admission as evidence of information which happens to be in documentary form.
In relation to civil proceedings, the law has changed to reflect changing circumstances, and it is now quite common for documents to be received as evidence of their contents. Until the enactment of the Criminal Evidence Act 1965, there was however an absolute prohibition on the admission in criminal proceedings of even the most routine record of a business transaction—a bank record for example—unless the person who had made it came to court and testified that they had indeed recorded that transaction. The Police and Criminal Evidence Act made a limited further relaxation of the law, but admissibility remains confined to records prepared by someone acting under a duty, and is heavily circumscribed by conditions relating to whether the person concerned was able to attend court in person.
The question we now have to ask is whether the criminal law as it stands may not still be too exclusive in its attitude towards documents. It is one thing to say that the person who observes an accident or an assault should be expected, if at all possible, to come along to court and give a first-hand account of what they saw. As I shall explain in a moment, it is no part of our purpose to interfere with that central principle of orality on which our system of trial rests. But in other cases information which the court could usefully take into account in reaching its verdict is naturally in documentary form or is not readily obtainable in any other form, and one must ask whether the interests of justice are invariably best served by a rigid rule which prevents its even being considered by the court. The committee under the chairmanship of the noble and learned Lord, Lord Roskill, addressed this question in the context of a specific type of crime—fraud—where evidence is often in the nature of things contained in documents. They were in no doubt that the present law is too rigid and prevents well-founded cases from being prosecuted. The noble Lord, Lord Hutchinson of Lullington, said the changes which they recommended were solely confined to fraud. Surely that was right because, as the noble and learned Lord, Lord Roskill, has said this evening, that was the terms of his reference. However, the noble and 86 learned Lord's committee recognised that they could well be applicable to other criminal offences, and indeed it would be unsatisfactory for the law on something as basic as the admissibility of evidence to be different depending on the offence charged.
The Government's view is that the Roskill Committee were right; that the law as it stands is too restrictive and artificially confines the courts' discretion to receive documentary evidence in a way which can frustrate rather than advance the interests of justice; and that the answer is to create a wider judicial discretion which, wisely exercised, should enable reliable documents to be weighted by the court for what they are. The last point is one which I must emphasise, because I think there may be some misapprehension about what we are doing. These clauses do not open the floodgates to all kinds of unreliable material. What they do, broadly speaking, is to replace absolute prohibitions with flexible discretions which the courts can use in the interests of justice, and taking full account of any likelihood of unfairness to the accused.
That, then, is the general background against which these clauses are set. Perhaps I can turn now to Clause 21, although in doing so I hope the Committee regard it as in order if I refer also to the other clauses in the part of the Bill, because they are closely related and form a general scheme. What Clause 2 does is to create a presumption that a statement made by a person in a document about a matter of which they have first-hand knowledge is normally to be admissible as evidence. Now that seems a very dramatic change, and has been represented as such by the noble Lord, Lord Hutchinson of Lullington. It is a significant change. But it is important to note that it is quite tightly circumscribed by other provisions in this part of the Bill.
In the first place, there is, as I have said, a discretion in Clause 23 for the court to direct that, notwithstanding the presumption in Clause 21, the document should nevertheless not be admitted. Clause 23 contains a list of considerations which the court is specifically directed to take into account in deciding whether to exercise that discretion, and these include any likelihood of unfairness to the accused if the document is admitted. They also include considerations bearing on whether the document is likely to be authentic, whether there is any alternative source of the same evidence and how relevant it is likely to be to the trial.
Secondly, under Clause 26 the court will retain all its existing powers and duties to exclude evidence. This means that evidence will not be admitted if it seems more prejudicial than probative, or if it would have an adverse effect on the fairness of the proceedings (the latter stemming from Section 78 of the Police and Criminal Evidence Act). These are important safeguards which I believe go a long way to meet the concern which some noble Lords have expressed about the risk of unfairness or prejudice to the accused.
Thirdly, and perhaps most important, Clause 21 does not apply to police statements and witness statements prepared in contemplation of criminal proceedings. These are dealt with in Clause 24, to which we shall come in due course, but the significance of that clause is that under the scheme in 87 this part of the Bill and with the exceptions of expert reports and overseas commissions, witness statements will not normally be admissible as evidence. This was a source of some misunderstanding when the Bill was debated earlier in another place and my honourable friend the Parliamentary Under-Secretary of State was able to clarify matters and put to rest some of the misgivings which had been expressed. The short point is that Clause 21 is not an assault on the oral tradition. It is primarily a means by which documents which pre-date even the prospect of criminal proceedings—which one might describe as historic documents—can be received by the court and given such weight as they deserve.
A good example of the kind of historic documents which could be admitted under the clause is given in the explanatory notes which we have circulated on the clauses of the Bill. A man is charged with murdering his wife and among her possessions is found a diary in which she has recorded a series of increasingly brutal assaults. Most ordinary people would, I am sure, be astonished that as the law stands the judge would have no choice but to keep the diary from the jury, and it could accordingly not be given any weight whatsoever as evidence that the earlier assaults had taken place. Under Clause 21 the diary would be admissible, unless the judge excluded it, perhaps because there was a real doubt about its authenticity or because in the particular circumstances of the case he thought that there was too great a risk of unfairness to the accused.
The noble Lord, Lord Hutchinson of Lullington, said that it would be up to the accused to persuade a judge that documents should not be allowed. I would just point out to him, which I am sure he has not missed, that it works both ways. The diary could be essential to the defence of the accused and it would be up to the prosecution to prove that the judge should not allow it to be produced. Surely that seems to be the right balance to strike.
The present law is too rigid and artificially keeps from the court relevant evidence which it would be in the interests of justice for it to receive. I believe the judiciary can be trusted to exercise the discretion given by Clause 24 wisely and with full regard to fairness for the accused, and that the jury and the magistrates can be trusted to give the documents they receive the weight they deserve, taking full account of the limitations inherent in the fact that there is no physical witness there to be cross-examined.
It is this crucial question of trust, both in the wisdom of the judiciary and the maturity and good sense of the jury, that I venture to suggest—not in any adversarial spirit—divides the supporters and the opponents of this clause. The consequences of accepting the arguments of the opponents of the clause would be that we would have to continue to deny the jury even the opportunity to assess relevant historic evidence which happened to be in documentary form. I cannot believe that that would be in the best interests of justice.
The noble Lord, Lord Hutchinson of Lullington, gave a number of examples of documents which would in principle be admissible under this clause. Of the examples he gave, the second, relating to the 88 police officer's note in his notebook, could well be covered by Clause 24 because it would be likely to be regarded as a document prepared in a criminal investigation. But that is a small point. My main reaction is that the other examples he gave are indeed cases where the court, whether it be the judges or the magistrates, would want to think very carefully about where the interests of justice lay. Whenever the evidence is central to the question of innocence or guilt, the court is bound to have a difficult decision to make, and I would put it to the noble Lord that it is surely right that that is where the balance should lie. If the judge thought in any of the cases cited by the noble Lord that the risk of unfairness to the accused was so great that he should exclude the document in the interests of justice, Clause 23 gives him the discretion to do so.
With regard to the other points that the noble Lord raised, and those raised by the noble Lord, Lord Irvine of Lairg, I am extremely grateful for the contributions of the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, who answered the points far better than I could have done. I shall not repeat what they said or differ from them. It is for those reasons that I very much hope that the noble Lord and his colleagues will not press their reservations about this clause to a Division.
I am pleased to have the support of the noble and learned Lord and the noble Lord on the Cross-Benches, but I take up one of the points that they made, which was about finding a half-way house or something that would impose greater restrictions on what was admitted under Clause 21. I am very happy and willing to work towards that end between now and another stage. But I think it is fundamental to the Bill, and fundamental to improving the possibility of justice through innocence or guilt, that we allow Clause 21 to stay in the Bill.
§ Lord Gifford
I have listened with great care to the debate and I found myself very bewildered by the heat that was generated in the early stages between the noble Lord, Lord Hutchinson, the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson. I found myself agreeing with every word of the speech of the noble and learned Lord, Lord Roskill, and his colleague on his committee, the noble Lord, Lord Benson. But I found that their speeches were speeches made in support of Clause 22 of this Bill, which, as I understand it, is not a clause which the noble Lord, Lord Hutchinson of Lullington, wishes to amend, save in a very minor way, because all the documents of which the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, were speaking are documents created or received by people in the course of either a trade, a business, a profession or another occupation or as the holders of paid or unpaid offices.
The difference surely between the sort of documents of which the noble and learned Lord, Lord Roskill, was speaking and the sort of documents of which the noble Lord, Lord Hutchinson of Lullington, was speaking is the difference between Clause 22 and Clause 21, and surely the half-way house, of which the noble and learned Lord, Lord Roskill, was speaking, is there in the Government's Bill in Clause 22, which I for one would not wish to see weakened.
89 Therefore, nothing in the eloquent speech of the noble and learned Lord, Lord Roskill, seemed to me to go to the extra allowances made by Clause 21 over and above Clause 22, and all those trade documents, which I can see are so useful in the prosecution of fraud, would be allowed in this Bill without the deletion of Clause 21. So it is not a destructive amendment. It is an amendment which is seeking to avoid injustice being done by the inclusion of non-trade documents, non-business documents, private documents of one kind or another made by people who are not called to give evidence and have their evidence tested in cross-examination.
§ Lord Hutchinson of Lullington
It was like a breath of fresh air to hear the comments of the noble Lord, Lord Gifford, because what he said was precisely and exactly what I myself was going to say. We have been beating the air in this debate. I thought that I had made that point in moving the amendment but it does not seem to have been appreciated. I made the point that I and those who support it agree 100 per cent. that in those massive trials to which the noble Lord, Lord Benson, refers of course all those documents have to be admitted and of course the provisions of the Police and Criminal Evidence Act as amended by Clause 22 do precisely that.
No one is quarrelling with the play which the noble and learned Lord, Lord Roskill, always makes on these occasions with the documents, the cheques and all the kerfuffle that there used to be about proving the bank account. Everyone, and above all those at the criminal bar, agree that it is ludicrous to think that such documents must be proved by their makers. Provision has been made in the Police and Criminal Evidence Act and is made in Clause 22 to cover all that. We are complaining about Clause 21, which goes right outside fraud cases and outside the Roskill Report. I ventured to draw attention to that point and I noticed that the noble and learned Lord, Lord Roskill, took no notice whatever of the quotation that I made from the paragraph which I ventured to read out—
§ Lord Roskill
I said that that paragraph was largely a quotation from Sir Rupert Cross. The noble Lord must have forgotten what I said. As I am on my feet, I hope that the Committee will allow me just to add that the difficulty about the point that the noble Lord, Lord Gifford, made and which the noble Lord, Lord Hutchinson, is making is that so many documents which are created in the course of the perpetration of a fraud are not created in the course of a trade, business, profession or other occupation. I can see the most eloquent submissions being made by the noble Lord, Lord Gifford, that they should on that ground be excluded.
§ 9.15 p.m.
§ Lord Hutchinson of Lullington
The noble and learned Lord has referred to the irresistible logic of Professor Cross, and indeed it is the irresistible logic that we are trying to resist. It is when the criminal law is governed by irresistible logic that it is the end of civil rights and civil liberties. The criminal law, thank goodness, is not governed by irresistible logic. Irresistible logic leads to the abolition of the jury, as indeed the Roskill Report wished to happen. 90 Irresistible logic leads to fraud cases being tried by a judge and two assessors from the City of London.
It is somewhat ironic having regard to what has happened since this matter was last discussed that if the Roskill recommendation had been followed and had found its way into the Bill fraud cases and the fraud cases which are now in the air would be tried by a High Court judge and two assessors, no doubt from the City of London. That would hardly be an ideal tribunal. but irresistible logic leads to that, because that tribunal would get away from all the rubbish of barristers trying to explain to 12 ordinary people what a hank account is about. That tribunal could cut away all that rubbish and plunge into what mattered; that is whether those gentlemen from the City were really dishonest.
Of course the decision of the tribunal was a majority one and the two assessors might conceivably come to the conclusion that the gentleman from the City in the dock had not been dishonest, whereas the learned judge who was chairman might come to the opposite conclusion. In my submission it would be far better to have a tribunal of 12 ordinary people to decide an issue such as that, whatever irresistible logic may say.
The mischief of Clause 21, with great respect to the noble and learned Lord, is that it goes right outside the problems of the fraud case and makes what has now been described as historic documents evidence of the truth of what is in those documents. The example which was given was that of the victim of the murder. Burrowing in the drawer and in the cupboard of the victim's room is found an old diary. In the diary is an entry. That entry says that on a Thursday five years ago or two years ago the maker of the diary saw so-and-so who said, "My God. if I ever get the chance I'll do you in". That would be evidence, as would any other entry in the diary.
Whatever was in that diary could be put in as evidence in a case. How can that be disputed by the person in the dock? How can one dispute an entry in a diary, which is an historic document? A letter might be found which said, "I saw so-and-so through a window threatening his wife with a knife". That would be evidence. How could that be disputed? How could the identification be disputed? How did the writer of the letter know that it was the wife? How did he know it was a knife? As an historic document that could not be disputed.
All that has nothing to do with fraud cases in the City of London. The trouble with the clause is that it makes what the Minister has called a dramatic change in the evidential principles on which we conduct criminal trials. The safeguard lies in the discretion of judges rather than the rule of law. Therefore, the touching faith of the noble and learned Lord in the wisdom of a judge who may always say, "No, that would not be fair or right", and in all the matters which the judge must take into account in exercising his discretion may be misplaced. The whole history of the law is that rules of law achieve the maintenance of liberties and civil rights rather than the discretion of judges. Some judges are excellent; some are not. Some judges decide a matter in one way and some in another. The problem with putting such faith in the discretion of judges is that to appeal against the discretion of a judge which has 91 been exercised on the facts before him is almost impossible.
What Clause 21 simply comes to is getting rid of the whole rule against hearsay in relation to documents; any document which is found anywhere and in any circumstances can be put into evidence. If that is seen to be in any way unfair, the right of appeal lies with the judge and the judge will decide whether it is in any shape or form prejudicial. Those of us who have practised at the bar and in the criminal courts for many years still feel that the rule of law is more important than a judge's discretion.
92 Our debate has been interesting and I hope that the Minister will read carefully what has been said in the debate and will appreciate that we are not concerned about the problems put forward by the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, but rather with the problem of enlarging the principle in Clause 21. However, in the circumstances and having regard to the lateness of the hour, I do not wish to push the amendment to a Division. I believe that I saw a spark of recognition that there are matters still to be looked at and we shall return to those at a later stage.
§ Clause 21 agreed to.93
§ Clause 22 [Business etc. documents]:
Lord Mishcon moved Amendment No. 25:
Page 14, line 16, leave out ("shall") and insert ("may").
§ The noble Lord said: I shall take the amendment fairly briefly. The Committee will see, in referring to Clause 22 and in particular to page 14, line 26, that the subsection applies whether the information contained in a document was supplied directly or indirectly. However, if it was supplied indirectly, only if each person through whom it was supplied received it in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office would those documents be admissible in criminal proceedings. That is mandatory and it is subject only to the provisions which occur later in Clause 23.
We are seeking in Amendment 25 to leave out the word "shall" and insert "may". It would therefore be left as entirely discretionary for the court as to whether that should happen. Amendment No. 27, which is in my name and in the name of my noble and learned friend Lord Elwyn-Jones, contains a provision which says that a statement in a document will be admissible under Clauses 21 and 22 only if, having regard to all the circumstances, the relevant court is satisfied, and then your Lordships will see the test:
beyond reasonable doubt that it is in the interests of justice that such a statement shall he admitted".
§ The amendment is tabled on the basis that the clause which we have just been debating forms part of the Bill. What we are saying is that first, it is not mandatory; it is discretionary. Secondly, the test is the strong test that the learned judge or the magistrates at the magistrates' court before admitting the document, should be satisfied beyond reasonable doubt that it is in the interests of justice that such a statement should be admitted. I beg to move.
The Earl of Caithness
I think that this amendment may reflect a misunderstanding about the effect of Clause 22 as currently drafted. It was a misunderstanding in another place. I would refer the Committee to Standing Committee F and col. 333 where the honourable Member leading for the Opposition agreed with my right honourable friend the Parliamentary Under-Secretary in his interpretation of the word "shall" and the word "admissible". I shall come to that point now.
All that the provision says is that evidence of the kind covered by the clause, that is evidence in business documents, shall be capable of being admitted and not that it shall be admitted. As I have said in our discussions on Clause 21, the scheme in Part II allows the court a clear discretion to exclude evidence which Clauses 21 and 22 render admissible. That discretion is in Clause 23 and I hope your Lordships will agree that it meets the concerns which have been expressed that such evidence should not be admitted automatically.
94 If Clause 22 were amended as proposed in the amendment, the clause would in effect say that evidence in business documents may be capable of being admitted. Simply as a matter of language that does not seem to me to make sense and would I think lead to uncertainty in the law. I hope that the noble Lord agrees and will be willing to withdraw the amendment.
§ Lord Mishcon
I am most grateful to the noble Earl for referring me to what happened in Committee in another place of which, let me tell him at once, I was unaware. He is very kind and I can see the sense of what he is saying. I would only say to him, without taking up any more time of the Committee, that the word "admissible" does in fact infer—certainly to the layman—that it is to be admitted and I entirely agree that the literal translation or meaning of the word is that it is able to be admitted. The word "shall", also gives a mandatory tinge to it. In spite of what the noble Earl was kind enough to tell me about what happened in another place, I can see no objection to the use of the word "may" in these circumstances. I certainly do not, on a matter of this kind, intend to delay the Committee and in those circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hutchinson of Lullington moved Amendment No. 26:
Page 14, line 35, at end insert—
("(4) A statement contained in a document produced by a computer shall be admissible only if it satisfies the condition laid down in sections 21 and 22 of this Act and section 69 of the Police and Criminal Evidence Act 1984.").
§ The noble Lord said: This is a short matter and I hope that if my reasoning is right the Minister will accede to the amendment. It is only an amendment to help. Schedule 11 repeals the Police and Criminal Evidence Act. The result of that repeal is that Section 69 of the Police and Criminal Evidence Act repeals Section 68. Therefore, Section 69 stands on its own. At the moment Section 69 is subject to the terms of Section 68. In other words, it is caught by the inclusionary requirements of Section 68 with the result that a document produced by a computer, if it includes hearsay, must satisfy the conditions set out in Section 68. If we remove Section 68 and leave Section 69 by itself, it will mean that you can put into the computer any kind of hearsay evidence or hearsay document. The result will be that anything that comes out of the computer will then be admissible evidence so long as the conditions as to proper use and operation of the computer are obeyed.
§ The amendment is necessary in a situation where documentary hearsay will be covered by this clause but documentary hearsay that comes out of a computer will simply not be covered. It is only as a result of having repealed the section of the Police and Criminal Evidence Act which controls Section 69 that we are left in that situation. I hope that the Minister, if he feels that what I have said is irresistible logic—and this is what we appear at the moment to be directed towards—will agree to the amendment. I beg to move.95
The Earl of Caithness
We had a little trouble trying to understand what the noble Lord meant and the point he was driving at when we saw this amendment. I believe, however, that I have it clear. One problem was our interpretation that Section 69 stands on its own and does not rely to the extent that the noble Lord indicated on Section 68.
It is true that computer documents are among those whose admissibility will in future generally be covered by Clauses 21 and 22. However, sometimes, as at present, they will come in under their own steam, as it were, as genuine print-outs of a measurement or calculation. We believe it would be wrong to limit the cases in which they may be admitted to those covered by Clauses 21 and 22. They will continue to be governed by Section 69 of the Police and Criminal Evidence Act 1984. This is ensured by a specific saving in each clause, by Clauses 21(1)(b) and 22(1)(b).
I hope, therefore, that I have covered the point but I was a little confused as to what the noble Lord was driving at. I shall read the Official Report with interest.
§ Lord Hutchinson of Lullington
I thank the Minister. I raise the point because Section 68 begins:Subject to Section 69 below, a statement in a document shall be admissible in any proceedingsand so on. It would appear from those words, in combination with Section 69, that Section 68 governs Section 69. I ask the Minister to read what has been said. I shall be happy to hear at a later stage what he has to say. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 agreed to.
§ Clause 23 [Principles to be followed by court]:
§ Lord Elwyn-Jones moved Amendment No. 27:
Page 14, line 36, leave out subsection (1) and insert—
("(1) A statement in a document will only be admissible under sections 21 and 22 above if, having regard to all the circumstances—
The noble and learned Lord said: My noble friend Lord Mishcon dealt with this matter with some well-chosen words when he spoke on an earlier amendment. The Committee will see that in relation to Clauses 21 and 22 the amendment provides,
A statement in a document will only be admissible under sections 21 and 22 above if, having regard to all the circumstances
the relevant court,
is satisfied beyond reasonable doubt that it is in the interests of justice that such a statement shall be admitted.
§ We regard that as a crucial safeguard which will remove a great deal of the anxiety that has been expressed about the wide-ranging nature of Clauses 21 and 22. On the other hand, I do not think that the inclusion of the words would damage the prospects of the prosecution. I hope that accordingly the noble Earl will agree to the amendment. I beg to move.
§ 9.30 p.m.
The Earl of Caithness
I am delighted to welcome the noble and learned Lord to the front line of the new attack from the Opposition. How nice it is to see him again after the Recess!
The broad purpose of Clause 23 is, as the Committee knows, to give the court a discretion to exclude evidence which is made admissible by Clauses 21 and 22, where it considers it should do so in the interests of justice. The clause draws attention to several specific considerations which the court is to have in mind in deciding whether or not to exercise that discretion. These are, very broadly speaking, reliability, or the nature and source of the document including whether it is likely to be authentic; necessity, or whether there is any readily available alternative source of the evidence; relevance; and any risk of unfairness to the accused resulting from the document's admission, or exclusion, when the supplier of the information does not attend to be cross-examined. These criteria themselves would not be disturbed by the noble Lord's amendment.
What the noble Lord's amendment would, however, do—and indeed this is its purpose—is to dilute significantly the presumption which this part of the Bill contains in favour of admissibility. It is a matter of judgment where one strikes that balance. The amendment would tilt the balance against admission by saying that, although admissible, the documents covered by Clauses 21 and 22 were not to be admitted unless the court was satisfied beyond reasonable doubt that they should be, in the interests of justice. That would amount to presumption against admission, which the court would have to displace. In the Government's view it would be too restrictive, since for the reasons I have given in our earlier debates, we see great attraction in liberalising the law by creating a presumption in favour of admission, displaceable where the court considered it ought to be, in the interests of justice.
There is, I sense, not a great deal between us on this, and it is partly a question of tone and precisely where one strikes the balance. But there is nevertheless a real distinction between the positions in which the court would find itself under the alternative formulations.
Although I shall look at what the noble and learned Lord has said, my strong preference is to leave the Bill as it is, for the reasons that I have given. I hope that with that the noble and learned Lord will be able to withdraw the amendment on this occasion.
§ Lord Elwyn-Jones
The noble Earl has kindly said that he will look at this matter again. Clauses 21 and 22 provide a considerable—I shall not use the phrase 97 "infringement of"—diminution of the objections to hearsay, and a considerable extension to the range of admissibility of documents. It is a modest provision. I should have thought that the requirement that the court should be satisfied beyond reasonable doubt that it is in the interests of justice that the relevant statement should be admitted should make even more effective the impact of documentation released under Clauses 21 and 22.
I am pleased that the Minister has agreed to look at this proposal again. There is a point of substance in the matter. I am grateful to him for saying what he did. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Hutchinson of Lullington moved Amendment No. 28:
Page 15, line 20, leave out ("and") and insert ("( ) to the reasons why it is proposed that the person making the statement shall not give oral evidence;").
§ The noble Lord said: This amendment takes the matter a little further. We are dealing here with the issues which govern the exclusionary discretion of the judge. These are the matters the judge in exercising that discretion is enjoined to take into account. As we have seen, the issues to which he must have regard in relation to the interests of justice are whether the document is likely to be authentic, the extent to which the statement would not otherwise be readily available, the relevance and the unfairness to the accused.
§ This amendment provides that another matter should be included which is absolutely basic: the reasons why it is proposed that the person making the statement should not give oral evidence. If a document is to be put in and the person who made it is not to give the oral evidence then surely that is a very important consideration for the judge to have in mind in exercising his discretion. If the maker of the document is available, if the maker of the document appears from other evidence as possibly unreliable, if there is some evidence to show that it may indeed be a false document, then surely the judge should have to consider above all whether there are good reasons for not calling the maker of the document.
The Earl of Caithness
I have listened carefully to what the noble Lord has said in support of his amendment, and I have taken careful note of his concern. However, I am not convinced that the substance of that concern is not already provided for in the clause as it stands. In the first place, it should be remembered that the list of considerations to which the court's attention is directed by Clause 23(2) is not exhaustive. Under Clause 23(1), in deciding whether to exercise its discretion to exclude a document which is admissible under Clauses 21 or 22, the court is to have regard to all the circumstances, and Clause 23(2) is specifically expressed to be without prejudice to the generality of subclause (1).
Perhaps more important, however, the idea which lies at the heart of the amendment—that the court should take account of whether there is a witness who 98 could readily give the same evidence as in the document and could reasonably be expected to do so—seems to me already to be captured by subsection (2)(b). This refers to the extent to which the statement in the document provides evidence which would otherwise not be readily available. This expresses the same thought more generally and, I would argue, more helpfully. If the court's attention were drawn specifically to, as it were, the excuses for a particular witness not attending court, there is, it seems to me, a risk that the argument will focus on that aspect, even where, as is the case with many routine business documents, it is scarcely reasonable to expect the person who made them to come to court.
I am not persuaded by the arguments which have been made for an explicit reference to the reasons for there not being a witness to give oral evidence, because we believe that they are already covered in the Bill as it stands.
§ Lord Mishcon
Some of us may be rather disappointed with the latter part of the speech of the noble Earl, encouraged as we were by the beginning, when he said (I am paraphrasing his words) that he could understand the reason for the amendment. I thought that he was implying that he had some sympathy with it. The only reason given by the Minister for rejecting this amendment is that he thinks it is already provided for. I can only tell him with deep respect that the following principle is at stake.
Oral evidence must be preferred to written evidence. About that there is no doubt. Nevertheless, if one concedes the point that documentary evidence in certain circumstances ought in the interests of justice to be produced, and one should not insist upon oral evidence, then the court's attention should be directed to the fact that Parliament wanted the court to look at the reasons why oral evidence was not being given. Instead of having the implied words that the Minister thought lay in the wording of the Bill at present, we have the expressed words in the amendment. I was surprised that he was resisting it. Perhaps in his kindness he will agree to consider what has been said between now and the Report stage.
§ Lord Roskill
I do not want to delay your Lordships at this hour; but; like the noble Lord, Lord Mishcon, I have a certain sympathy with this amendment. Indeed the only answer to it must be that it is already covered by Clause 23(1). For myself, simply as a matter of construction, I should be a little worried if one put these specific words into Clause 23 between paragraphs (c) and (d). It might cut down the generality of the provisions in Clause 23(1).
If I were a trial judge and I were asked to admit a document of the kind we are discussing, the first thing I should ask myself is: "Why won't this chap come?" There may be a dozen perfectly good reasons why he will not come. But I leave it at that and suggest to the noble Earl that he has another look at that because I am not absolutely satisfied myself at the moment.
§ Lord Mishcon
I am grateful to the noble and learned Lord for that intervention. While this might occur to him if he were the trial judge—I am sure it would—I am not quite so certain that some other 99 judges might take the view that this was not deemed important by Parliament as it had not taken the trouble to mention it. It could not possibly weaken the words without prejudice to the generality of subsection (1), only for the reason that the same remarks could apply to paragraphs (a), (b), (c) and (d), which are specified. I am adding only one of the particular matters that are mentioned.
The Earl of Caithness
I am sorry that the noble Lord, Lord Mishcon, could not go all the way with my argument. As I said at the beginning there is not much between us. We are driving at the same point and therefore it is logical that I should have another look at this between now and a later stage.
§ Lord Hutchinson of Lullington
It is always nice to see the Minister certain, and the noble and learned Lord, Lord Roskill, slightly unhappy. The two are now getting nearer to each other. In those circumstances, I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23 agreed to.
§ Clause 24 [Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations]:
Lord Irvine of Lairg moved Amendment No. 29:
Page 15, leave out lines 33 to 45.
§ The noble Lord said: I am emboldened to move this amendment in the light of the assurances that the noble Earl gave in the context of Clause 21, that he did not regard that provision as an assault on the oral tradition.
§ I take it that the general principle in criminal trials remains, that evidence which is in dispute should be given orally to judge and jury and be subject to critical scrutiny by cross-examination. The admission of uncross-examinable pieces of paper on disputed issues generally is to be regarded as retrograde.
As for Clause 21, however, it is of complete generality; it is not confined to fraud cases. But then we move to Clause 24 which deals with very particu-lar cases. It is concerned with statements made admissible by Clause 21 and Clause 22 prepared,
for the purposes—
§ The purport of this amendment is that such statements shall not be given in evidence in any criminal proceedings.
§ This is a particular provision. It is not the cheque example of the noble and learned Lord, Lord Roskill. I acknowledge that I see the force of that. What this provision means, as I understand it, is that the judge has a discretion to admit any witness statement or proof of evidence which has been given to either the prosecution or the defence solicitors for the purposes of a criminal investigation or criminal proceedings that are in contemplation.
§ I would ask the noble Earl, Lord Caithness, whether this is indeed so. But let us take this example. 100 In, say, a murder investigation A and B are under investigation. B is arrested and B confesses in a written statement. The police are satisfied that it is A who should be charged and naturally the defendant A would like B's confession statement to go before the jury. There can not be any doubt that under the present law it would be excluded on at least two grounds. The first would be that unless B was called to give oral evidence his statement making the confession simply could not be cross-examined. Secondly, the jury obviously would have the greatest difficulty in knowing what, if any, value to give to a wholly uncross-examinable piece of paper.
§ The purpose of this amendment is to suggest that statements of this character made in this context are characteristically unreliable. They are invariably made by persons with at least an interest to be untruthful; they are made to the prosecution or to the defence in circumstances in which the very atmosphere in which they are made may well encourage self-serving statements or allegations that are not true. I say they are always unreliable unless subject to cross-examination, always. It should be unthinkable in any case that witness statements, proofs of evidence, should in any circumstances at all be admissible in a criminal trial. Evidence of that kind should be given orally to the jury and be tested by cross-examination, or not given at all.
§ So the purpose of this amendment is to ensure that statements of this kind should in no circumstances be given in evidence in any criminal proceedings. I wonder whether the noble Earl might say that he will think again about this specific provision, provided of course that the noble and learned Lord, Lord Roskill, does not on this occasion assure him that no further thought at all is required.
§ 9.45 p.m.
§ Lord Gifford
May I speak to the manuscript Amendment No. 29A, which stands in my name and which takes a similar point to that raised by the noble Lord, Lord Irvine, that this clause should be substan-tially changed, but which approaches the matter in a slightly different way, because it makes an exception to preserve and slightly to extend the existing law with regard to depositions.
The existing law, in Section 13 of the Criminal Justice Act 1925, allows for the deposition of a person before the court to be admitted in evidence in four specific cases: that the person who made it is dead, is insane, is too ill to be able to travel or has been kept away from the court by the procurement of the accused person. In those limited cases, for many, many years the court has had a discretion to admit the deposition.
Those cases would seem to me ones which it would be proper to allow in or at any rate where the judge could have discretion to allow in. Subject to that, I share the concern of my noble friend Lord Irvine as to where this clause, as it stands, will lead. When people make statements in contemplation of proceedings there are many reasons why they may, deliberately or unconsciously, not give a truthful or accurate account. They may exaggerate or lie out of malice towards the accused. They may distort what has happened through their imagination and false 101 memory. Their words may be reinterpreted by the police officer who takes the statement and who puts down an account rather different from that which the witness is seeking to give. Everyone who practises at the criminal bar knows of the witness who does not come up to proof, yet it will now be possible to introduce the proofs of witnesses or other statements made in contemplation of the proceedings at the discretion of the judge.
I see no real difference between the wording of Clause 24 and that of Clause 23. The suggestion that there is somehow a different burden of proof seems to me to be no more than a form of words. In the end in both cases it is the opinion of the court as to whether it is in the interests of justice. I fear that witnesses may give statements to the police and may then choose to absent themselves, make themselves difficult to find or be encouraged to leave the country and that their statements can still be used in evidence.
It is not a fanciful suggestion. I referred on Second Reading to a case heard before the Central Criminal Court in 1986 where the only evidence against two accused was in the form of two depositions and one statement. The prosecution sought hard to get them admitted. Under the present law they could not be admitted. In future—and the case was a terrorist One—a judge's discretion can put before the jury as the only form of proof statements of absent witnesses, witnesses who have chosen to avoid coming to court for reasons that cannot be probed. Such evidence may well be worth less but it may seem potent to a jury.
There is great danger in allowing the clause to go through as it stands. I support the amendment moved by my noble friend; or, if that fails, I hope that the limited exception in my amendment may find favour with the noble Earl.
The Earl of Caithness
Clause 24 is the means by which we are ensuring that the more liberal arrangements for admissibility of documents proposed in Clauses 21 and 22 do not threaten the essential character of the trial as an oral event at which witnesses testify to events from their direct experience. It creates a presumption that documents which are themselves a construct of the criminal process—witness statements, police reports and the like—will not normally be admitted as evidence of their contents. It also leaves open the possibility that that presumption will be displaced in the mind of the court and that a particular document will be admitted in the interests of justice.
The amendment of the noble Lord, Lord Irvine of Lairg, raises the question whether it should ever be possible for a document of the kind covered by Clause 24 to be admitted. The case that the noble Lord outlined, the co-defendant's confession, is clearly one in which the court would act in accordance with the presumption in the clause and exclude the documents.
The Government's view is that there might well be cases where there would be a clear interest of justice to be served by admitting a witness statement. Such cases would not be common and the strength of our oral tradition of giving evidence is such that we would 102 expect the courts to exercise the discretion given by Clause 24 only very rarely.
Suppose, however, that a vital witness whose credibility there was no reason to doubt had died after making his statement to the police or had been so threatened by associates of the accused that he was afraid to come to court. The latter circumstance is all too easy to imagine in Northern Ireland, to which it is intended to extend these provisions by order in due course. It would in my view be wrong to exclude altogether the possibility of admitting the witness statement in such cases.
There are two other considerations that I believe are relevant. The first is that the clause is precedented in the Police and Criminal Evidence Act, which—admittedly in the context of the narrower range of documents for whose admissibility the Act provided—contained a similar presumption against the admission of witness statements, with similar scope for exceptions to be made in the interests of justice. The second is that the Roskill Committee commended that precedent and recommended its adoption in the more far-reaching evidence reforms that we are now implementing. The noble Lord, Lord Irvine of Lairg, may say with perfect justice that we should not follow blindly the precedents of earlier legislation or the observations of departmental committees, however distinguished their membership. I agree. But nor should we depart from them without careful thought.
For these reasons, I could not advise the Committee to support the amendment of the noble Lord, Lord Irvine of Lairg, and therefore close off altogether the possibility that, in the exceptional kind of case that I have mentioned, a witness statement could be admitted as evidence.
However, I would be willing to look again at the drafting of Clause 24 to ensure that its likely effect is that such cases will indeed be exceptional, as I have said.
The noble Lord, Lord Gifford, has as it were anticipated me by tabling a helpful amendment. It illustrates the kind of conditions that would be imposed. My initial reaction is that what he has suggested is perhaps unduly restrictive, but I should like to study it between now and the Report stage and consider whether to bring forward a government amendment with a similar purpose. On that basis, I hope that both he and the noble Lord, Lord Irvine of Lairg, will feel able to withdraw their amendments.
§ Lord Roskill
Perhaps I may say a word on this as the noble Earl said that this was one of our babies. Up to a limited extent it is. I fully see and understand the fears that theoretically at least this could be misused. The noble Lords, Lord Irvine and Lord Gifford, may riposte to what I am about to say that I have too much faith in the exercise of judicial discretion. I simply cannot believe that any judge in his senses would in the circumstances let in the kind of document which they envisage. If by any mischance he did so, I do not think it would take very long before the Court of Appeal said something rather sharp about it.
103 What this was designed in our original thinking to achieve was this sort of case. If this clause should be narrow in order to give effect to our thinking without risking any possibility of injustice in other types of cases, so be it. We were concerned with the type of statement which is obtained by the fraud squad in an investigation into a big fraud. It may be obtained in this country or it may be obtained overseas. In the latter case the witness just will not attend and there is no method on earth whereby you can compel him to do so. Trying to get evidence on commission in some form or another is a laborious and frightfully unsatisfactory and expensive way.
There are many such cases where the evidence in those statements may be largely flawed but is an essential part of the truth in the prosecution case. The prosecution case not only will stumble but will fail completely unless that statement can be used. That is what we were trying to get at in our report, and certainly this clause as drafted covers it.
The other kind of case is where the statement has been obtained in this country—the noble Lord, Lord Gifford, gave an example—but the maker of the statement has died. He repeated—and I am speaking from memory—very much the language of what I seem to recall as the Criminal Justice Act 1925 although it is a long time since I looked at it. I venture to agree with the noble Earl that the language is in these circumstances a little restrictive. However, the thinking is on the right lines if one could get a form of words which first would make this type of statement admissible where it is essential in the interests of justice that it should be done, and, secondly, protect against any possible risk of such a statement being admitted where no judge in his senses ought to allow it to be admitted.
There may be cases where a defence would want this sort of statement by a co-accused admitted. This is not only a prosecution case. As the noble Earl said in the debate on one of the early amendments, this is by no means a one-way amendment. Many years ago when I was first a judge in the days of capital murder I can recall trying a rather sensational capital murder case. It is all a long time ago and it does not matter my mentioning it now. One of the accused did not go into the witness box. One of the co-accused was desperately anxious to get in a document which could not possibly be proved unless that man went into the witness box.
Again and again I had to rule—rightly as it was ultimately held—that the document was inadmissible. It may be said that the interests of justice required that document to be admitted; but I can think of cases where if the noble Lord were defending someone he would want to get that sort of document admitted and this type of clause in its present form or in an amended form might help him. It is not the one-way clause in the interests of the prosecution only. I support it in principle but suggest that it should be looked at again.
§ 10 p.m.
§ Lord Hylton
In the course of his speech the noble Earl, Lord Caithness, mentioned the possibility of 104 extending this and other clauses to Northern Ireland, which I do not think at present applies as the Bill is drafted. This raises in my mind the suspicion that he may have been referring to accomplice evidence. We have in recent years seen quite a considerable number of cases where a great deal of accomplice evidence has been thrown out by the Court of Appeal in Northern Ireland. If I am implying something that is not at all the case, I hope that the noble Earl will tell me so.
§ Lord Hutchinson of Lullington
The debate, as so often with this Bill, has been repeatedly so remote from reality that it is almost unbelievable. What the noble Lords, Lord Gifford and Lord Irvine, have said is absolutely true when one becomes concerned with criminal trials. The noble and learned Lord, Lord Roskill, says that the whole fraud case may collapse "if this statement is not put in". Of course the whole case will collapse "if this statement is not put in". But as has already been said, the reality of trials is that statements are made by people under the urging of either a solicitor or a police officer, to keep the balance absolutely fair, on one side or the other in which they say things which are simply not true. They say them on a proof of evidence, and the proof of evidence may look totally innocuous when one reads it. The witness comes into the witness box and butter will not melt in his or her mouth. One then cross-examines the witness and one finds that half the witness's evidence has been put into that witness's mouth for a hundred reasons, but a hundred reasons which have nothing to do with the truth. It may be wicked, it may be absolutely understandable, it may be compassionate, it may be prejudice, it may be a thousand things, and the judge looks at the statement as it stands and the judge has to test it by what is "in the interests of justice"—that frail and hopeless criterion for a decision of this matter.
One judge's idea of what is in the interests of justice is totally different from another judge's idea of what is in the interests of justice. Some judges think that the right of silence should be abolished because in the interests of justice a person should go into the witness box. Other judges think that that is quite outrageous and that the interests of justice are that a person should never be forced to incriminate himself. Both of them are passionately for justice and the interests of justice. Both of them would make a totally different decision.
I would urge the Minister to look at the reality of the situation. The reality is that statements which are put on paper for the purpose of giving evidence in a trial cannot possibly be trusted by themselves. It is not possible to trust them. There is no way in which such a statement can be tested. There is no way in which a judge can sit back and say, "Because £27 million are involved in this case and there is one witness sitting in New York who will not come back and who can kill this man in the box, therefore it has to go in in the interests of justice". It is not right because the man sitting in New York may have made a perfect statement; but when you find him and put him in the witness box, you discover of course that he was the man behind it all the time, that he is a great and grand chairman of 15 companies and that his statement looks wonderful.
105 He may be manager of an important bank, as so often happens. But then, when you get him in the witness box, my goodness, you find that he was in cahoots all the time with the person who really perpetrated the fraud. This is another example of the passionate belief that you can have a human being sitting in judgment who can say, "In the interests of justice this shall go in." That is not reality and, as the Minister has promised to look at the matter again, I ask him to bear those considerations in mind.
The Earl of Caithness
Before the noble Lord decides what to do in respect of his amendment, it would be right for me to respond to the noble Lord. Lord Hylton. He raised a point in respect of Northern Ireland following a comment which I made. I mentioned Northern Ireland because it illustrated a point that I was trying to make about the risk of someone who has made a reliable statement to the police, is subsequently intimidated and becomes unwilling to give evidence at the trial. I should like to refer the noble Lord to Clause 134, where he will see the parts which will come under an Order in Council for Northern Ireland. There was no point other than that which I wished to make.
With regard to the last impassioned speech of the noble Lord, Lord Hutchinson of Lullington, I said that I would look at the matter again and indeed I shall.
§ Lord Irvine of Lairg
I should like to assure the noble and learned Lord, Lord Roskill, that I yield to no one in my regard for Her Majesty's judges, not least on occasions when they are exercising a discretion. However, together with the noble Lord, Lord Hutchinson of Lullington, my regard for principles of law, properly defined by Parliament, is perhaps even greater.
In view of the Minister's generous statement at this hour that he will be ready to consider this problem with a fresh mind tomorrow, or perhaps later, I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 29A not moved.]
§ Clause 24 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at eight minutes past ten o'clock.