§ 66 Clause 21, page 16, line 4, leave out from 'not' to end of line 8 and insert 'give oral evidence through fear or because he is kept out of the way'.1602
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 66.
§ Moved, That the House do agree with the Commons in their Amendment No. 66.—(Earl Ferrers.)
§ Lord Hutchinson of Lullington
My Lords, I rise to move that the House do disagree with the Commons in their Amendment No. 66. The Minister has just said that this amendment refines the clause and improves the drafting and that it arises as a result of some criticism of the drafting of the original clause. I suggest to the House that this amendment substantially alters, and in a most significant way, the effect of the original clause, which was amended as a result of an amendment that I moved on Report.
The clause began as a short clause containing 10 lines making any statement in a document admissible so that there was no necessity for a witness to give oral evidence. It was called in the side note "first-hand hearsay". As a result of very strong criticism about the breadth of that provision and the injustice which would inevitably arise in criminal trials if the clause stood as drafted in the original Bill, the noble Earl, Lord Caithness, agreed to reconsider the whole of that part of the clause and to bring it back on Report. As a result of that co-operative attitude, there were extensive consultations between those two stages of the Bill, and on Report 1 was able to move an agreed amendment which incorporated the 27 lines which now appear in the Bill between line 21 on page 15 and line 8 on page 16; that is, Clause 21(2) and (3). That merely deals with the power to have a statement made by a witness read in a criminal court instead of calling the witness, and enables the court to act on that statement which is not cross-examined too.
While welcoming the amendment the noble Earl said that the amendment,will, I think, strike a sensible balance, on the one hand in ensuring the admissibility of reliable documents in evidence, and on the other hand preserving the oral tradition of our system of trial". [Official Report, 17/11/88; col. 140.]The words now to be struck out are words which were put into the amendment. They come from the Criminal Justice Act 1925 and cover the reading of a deposition taken at the magistrates' courts. Those words have stood the test of time since 1925. They provide that the statement may be read, because the person who made it has not appeared to give oral evidence. He has been kept out of the way by means of the procurement of a person accused in proceedings in which the statement is sought to be submitted, or on his behalf. It is proposed that those words should go, and that the clause should read:The person who made it does not give oral evidence through fear or because he is kept out of the way".Your Lordships will see two substantial changes. One is that the word "appear" has gone, and so the clause reads:does not give oral evidence through fear",and, secondly, the connection between instilment of fear or the keeping out of the way of the witness with the person in the dock is removed. So the situation proposed by the amendment is that if there is evidence—the question is of course what sort of evidence—that the witness suffers from 1603 fear—presumably he may well be at court because the word "appear" is removed—or there is evidence that he has not turned up and he is being kept out of the way by anyone, then the statement can be read.
Hitherto the situation has always been that before one allows the statement to be read without cross-examination one must establish that the reason for the witness being kept out of the way is connected with the person in the dock. I suggest that it is crucial to have that connection. In innumerable cases a witness may give a strong statement to the police accusing a person of crime, and yet when the statement is examined material and information come to light to show that the witness is not worthy of belief. He is lying, exaggerating or just plainly mistaken. But that fact can only be established by questioning that witness in the witness box. There may be a document of some kind which proves overwhelmingly that the witness was not where he said he was or that what he is saying is completely untrue.
For the original statement to be used as credible evidence in those circumstances is enormously dangerous and may lead to a serious miscarriage of justice. Therefore I suggest that there must be a safeguard of some kind to allow that procedure only if the accused is involved in the threats that keep the witness away.
Leaving the amendment as it is could give rise to every kind of perversion of the course of justice. Any interested party could see to it that the principal witness was put in fear. A dishonest police officer could give hearsay evidence of the witness having suffered threats and the witness could be told to make himself scarce and not to come to court. It will be within the knowledge of many of your Lordships that in many cases up and down the country witnesses try not to come to court. They say that they are too frightened to give evidence and that they fear the results of giving evidence. That is continually given as a reason and is not accepted.
I understand that the basis of the amendment is that in terrorist cases it might give rise to problems to have to establish that the person being tried is connected with the keeping away of the witness, because it may be that the person being tried is to be proved to be a member of some organisation and that therefore in deciding that the witness is being kept away by someone in that organisation one may be deciding an issue which is an issue in the case, before the verdict in the case.
This matter went through in another place almost without discussion. I say in answer to that suggestion that trials within trials take place in criminal cases to decide whether a confession has been made voluntarily. The issue is decided in the absence of the jury. The judge trying the case may decide that the statement has been made voluntarily. The jury will then come back, and it is possible for the accused to suggest to the jury that the alleged confession was not made voluntarily, and the jury may find in that direction. No one could suggest that the issue has already been decided because the judge took a different view. I say that only in answer to the suggestion as to the basis of the amendment.
Lastly, there was a case called Loughlin which was decided in 1985 and is reported in 1985 Criminal 1604 Appeal Reports at page 157. It was a terrorist case tried at the Central Criminal Court by Mr. Justice Jones. When a similar suggestion was made in order to try to have a statement read under the law as it then stood and stands today, he said:That it is difficult to prove by admissible evidence"—that this putting in fear has taken place—cannot ever be a good ground for proof by inadmissible evidence".If the amendment stands, one asks the question: what will happen in court? Will the evidence be the evidence of a police officer who comes into court and says that the witness is not there? "I have seen the witness. He says that he was threatened last night by a lot of men with guns that if he came today his life would be in jeopardy". Will it be evidence given by a friend who said that he saw the witness? Will it be hearsay evidence? It is bound, is it not, to be hearsay evidence which will also be uncross-examinable? I suggest that this amendment should not be accepted.
§ 12 noon
§ Lord Irvine of Lairg
My Lords, we support the proposal of the noble Lord, Lord Hutchinson of Lullington, that this House should disagree with the amendment. The short point is this. As the Bill left your Lordships' House, what had to be shown was that the witness had not appeared to give oral evidence and that his non-appearance was procured by or on behalf of the defendant in the case. But Amendment No. 66 rewrites that condition and substantially alters it, because the new clause reads:The person who made it does not give oral evidence through fear or because he is kept out of the wayWe are decidedly unhappy about this amendment. It removes any need to show a causal connection between anything that the defendant and his friends may have done and the absence of the witness. The right of a defendant to have the evidence against him tested by cross-examination is a fundamental right, not to be lightly removed. We accept that a defendant who sets out to intimidate witnesses deserves no sympathy if he forfeits that right as a result. The right must clearly be forfeited if the absence of the witness is due to action by the defendant or his friends. That was the state of the provision when it left this House.
Let me give two examples. First, let us say that a defendant is being prosecuted for assault. An important witness is an old lady who was a passer by at the time of the incident. She gives a damning statement to the police which may be completely inaccurate and might be shown to be so under cross-examination. But she does not give evidence because she is genuinely fearful that the defendant will do something to her if she testifies against him. In fact her fear is quite ill-founded; neither the defendant nor anyone else has given her cause for concern. Nonetheless if this amendment is accepted in its present form her statement can go in and the defendant has no right to cross-examine her. I find that rather shocking. I hope that there will be some on the Benches opposite who will find that rather shocking too.
Let me give another example. Suppose one has the kind of case, which is perhaps not that uncommon, where the victim's family, let us say, would do anything in their power to secure a conviction of the person the family believe to be guilty. But they 1605 become aware that a prosecution witness—the important prosecution witness,let it be—has been having doubts about the accuracy of his statement since he made it to the police. If they keep that witness away, by virtue of this amendment his original statement can go in without the opportunity of cross-examination.
I suggest, in support of the noble Lord, Lord Hutchinson of Lullington, that it is quite unacceptable that a defendant should, through no fault of his own, be deprived of the right to cross-examine the witnesses against him. This provision was in a proper form when it left this House and is in an unacceptable form now.
§ Lord Renton
My Lords, the objections which have been raised to the Commons amendments could mostly be raised also against Clause 21 as it stands. Clause 21 is incidentally, if I may say so in passing, a mind-bending piece of drafting. We are faced with a choice of evils. The clause was not entirely satisfactory as it stood. One must accept that there are difficulties about the position that will arise if the Commons amendment is accepted. We are faced with a choice of evils. But I prefer the Commons amendment and consider it a lesser evil. After all, if it is to be accepted in principle that the statement of a witness may be read in court because he would be in fear of giving evidence, it seems to matter scarcely at all in principle whether or not he is present in court.
I prefer the language of the Commons amendment to the language of the Bill as it stands. The revised form of words is wider but it is less clumsily expressed. I think therefore that we should agree with the Commons on this amendment.
§ Lord Campbell of Alloway
My Lords, very briefly I support the Commons amendment. Whether one regards it as on the balance of evils or not is perhaps another question. It is said by the noble Lord, Lord Hutchinson of Lullington, "Well, the old form of drafting has stood the test of time since 1925". In a sense he is right. But times have changed. We are now in a situation of having to change with the times in order to seek to curtail the growing menace of criminality in this country and to deal not only with a specific problem, which is not relevant in this context, of juries being put in fear but of witnesses being put in fear. I do not regard it as anything other than a relevant and useful contribution which the Commons have made to assist in the fight against crime to say, "Does it really matter whether the witness is in court or is not in court if he is put in fear? Does it really matter whether it can be assuredly proven that he was put in fear or kept out of the way by the accused?" That is sometimes a very difficult fact to prove. In these circumstances, on balance surely it would be wrong to reject the Commons amendment.
§ Lord Hailsham of Saint Marylebone
My Lords, I do not want to repeat much that has been said, or anything if I can avoid it. I have always been a determined enemy of sacred cows. Sacred cows are friends of professional criminals. I cannot think of anything which has been said from either of the two opposite Benches which would he likely to escape, in a suitable case, the eye of an alert judge at the trial. 1606 If it did escape the eye of an alert judge at the trial, it would not escape the jury, especially if the defendant were defended by a reasonably competent counsel.
My belief is that there is a curious love-hate relationship among some legal experts with juries. On the one hand if we try to interfere with juries people say that they are the palladium of our liberties. But if we once give them the chance to decide between truth and falsehood, they say "Oh, they mustn't be allowed to hear this or that because they can't be trusted to find out the difference".
My Lords, I was interested to hear the views of the noble Lords, Lord Hutchinson of Lullington and Lord Irvine of Lairg. The purpose of subsection (3) is quite simple. It is to render admissible statements which are made to a police officer where the witness is subsequently kept away from the trial. One might take as an example somebody who is kidnapped or does not give evidence through fear. Subsection (3), which can be traced back to Section 13(3) of the Criminal Justice Act 1925, was inserted by the noble Lord, Lord Hutchinson of Lullington, at an earlier stage in the Bill. At that time concern was expressed about its obscurity and complexity by the noble Lords opposite, including the noble Lords, Lord Mishcon and Lord Irvine of Lairg. That is why I found it rather curious when the noble Lord, Lord Irvine of Lairg, said that he thought that the words were better in their original than in their present form.
As a result of the remarks that were made when this measure passed through the House before, my noble friend Lord Caithness explained that, as the wording was taken from an existing statute, we considered that it would be all right, but nevertheless, we would look again at the new subsection. We looked at that subsection and we agreed with the view that the form of words chosen was rather archaic and somewhat obscure. We took the view that the subsection was too narrowly drawn to cover some of the circumstances for which it was needed.
It would not, for example, have covered the situation where a potential witness in a terrorist trial was kidnapped by members of a sectarian organisation before he could come to court, unless it could be proved in court that that was done on behalf of the accused or, in other words, that he had links with the organisation. But as the alleged links might be an issue in the trial itself, that would not be a very satisfactory state of affairs. Nor does it cover the kind of case where, because of threats or intimidation, a witness will not give evidence at the trial. This amendment therefore seeks to substitute a new form of words for Clause 21(3)(b) which go to the nub of the circumstances which we are trying to address. In another place it was accepted as being a sensible improvement.
I agree, of course, that we must be cautious about letting in written evidence because of ill-founded fear on the part of the witness. But there are cases, and terrorist cases are the clearest example, where the wider formulation of the amendment is right. The judge always has a discretion to admit or not to admit the document. He will have in mind all of the circumstances of the case.
1607] I hope that the noble Lord, Lord Hutchinson of Lullington, and indeed the noble Lord, Lord Irvine of Lairg, will agree that it is preferable to keep Amendment No. 66 as it was approved in another place. I am sorry that we have found it necessary to tinker with the noble Lord's original wording, but I think that Amendment No. 66 carries on the process of improving the scheme and would be better left as it is.
§ 12.15 p.m.
§ Lord Hutchinson of Lullington
My Lords, I am disappointed with what I have heard in answer to the argument in support of this Motion. The argument has simply not been dealt with. The noble and learned Lord, Lord Hailsham, talks about a sacred cow. This is not a sacred cow at all, if I may say so with great respect to the noble and learned Lord; it is a sacred principle. The sacred principle is much more important than the cow.
The sacred principle is that in a criminal trial the trial should be fair. I do not know how on earth this wonderful jury will make up its mind if a statement is read which accuses someone of committing a crime and the defending counsel has in his hand a document which proves clearly that the witness is not telling the truth. But the defending counsel cannot produce that document unless the witness is there for him to put it to the witness. How on earth will the jury make this brilliant decision that the statement which is being read is a pack of lies from start to finish?
The observations that have been made, if I may say so with the greatest possible respect, do not show any kind of knowledge of what happens in criminal cases. The noble Lord, Lord Renton, said that the objection applied to the whole of the rest of the clause. But the whole of the rest of the clause deals with statements being read because somebody is dead or mentally unfit or is abroad. Those are all matters of proof. The trouble with this part of the amendment is that it is not concerned with a question of proof. If somebody says that they are frightened or that they have been put in fear by an anonymous person, and if the police give hearsay evidence in court that the witness is being kept away because he is terrified, that is not a question of fact. It cannot be proved.
§ Lord Renton
My Lords, the noble Lord must have misheard me. I said in passing that Clause 21 as a whole was a mind-bending piece of drafting. But the argument which I used in favour of the Commons amendment was related simply to the Commons amendment.
§ Lord Hutchinson of Lullington
My Lords, as regards the mind-bending drafting, of course it is inelegant drafting, but it really does not matter, if I may say so again with the greatest of respect, whether it is elegant or inelegant. This is a matter of absolutely fundamental principle, and a matter of the fairness of a criminal trial. In those circumstances I feel bound to take the view of the House on the matter.
§ On Question, That the House do disagree with the Commons in Amendment No. 66.
§ Their Lordships divided: Contents, 42; Not-Contents, 45.1608
|DIVISION NO. 1
|McGregor of Durris, L.
|Carmichael of Kelvingrove,L
|Morton of Shuna, L.
|Cledwyn of Penrhos, L.
|Cocks of Hartcliffe, L.
|Nicol, B. [Teller]
|Dormand of Easington, L.
|Russell of Liverpool, L.
|Harris of Greenwich, L.
|Henderson of Brompton,L
|Turner of Camden, B.
|Hutchinson of Lullington, L. [Teller]
|Irvine of Lairg, L.
|Long, V. [Teller.]
|Belhaven and Stenton, L.
|Mackay of Clashfern,
|Macleod of Borve, B.
|O'Brien of Lothbury, 1
|Campbell of Alloway, L.
|Peyton of Yeovil, L.
|Denham, L. [Teller.]
|Rippon of Hexham, L.
|St. John of Fawsley, L
|Saint Oswald, L.
|Fraser of Kilmorack, L.
|Hailsham of Saint Marylebone, L.
§ Resolved in the negative, and Motion disagreed to accordingly.
§ On Question, Commons Amendment No. 66 agreed to.
§ 12.24 p.m.