10A In paragraph (2) (b), after ("as") insert ("an accurate statement of').
§ Lord McCluskey
My Lords, I am trying to keep pace with the speed of developments. This clause is concerned, in effect, to put into statutory form the law which has been developing since Muldoon v. Herron and which most recently found expression in Jamieson v. Her Majesty's Advocate in July last year. I do not greatly approve of the way the law has developed. But it has developed slowly in the courts and there is nothing that I propose to alter in respect of it. But what worries me about the matter here is that, if one looks at the Jamieson case, one has the kind of situation where the witness comes into court and says, "I cannot give evidence about the matter. I did not see it". Then under pressure he says, "Well I might have said something different to the police. Yes, I did give a statement to the police". He is asked, "Did you tell lies to the police?" "No". "Did you tell the truth to the police?" "I suppose I did". Then the police say in court, "What he told us was this". That then becomes the evidence in the case. This provision gives that statutory form.
That worries me and so I am concerned to move this amendment which would insert after the words, "he adopts it as", in paragraph (2) the words, "an accurate statement of'. In other words, one has to be a little more strict than the court was in the case of Jamieson. It is not to be regarded as evidence which the jury can found upon unless the witness says, "Yes, I said it, and I accept that it is an accurate account of the evidence which I would have given if my memory had not failed me". I beg to move.
§ Moved, That Amendment No. 10A, as an amendment to Commons Amendment No. 10, be agreed to.—(Lord McCluskey).
§ Lord Rodger of Earlsferry
My Lords, the question is whether the evidence should be admissible. I of course understand the point that the noble and learned Lord makes, but where someone in the circumstances he described says, "If that is what I said, it must have been true", or whatever it is he says, he has in effect adopted it as his evidence.
The question is whether that evidence is admissible. It will be open to cross-examination and comment. I do not believe that it would add anything in practice if he merely said, "I adopt it as accurate", or whatever it may be, because that is the tenor of it. It may well be that in such circumstances questions arise as to whether the evidence was accurate. I believe that the spirit of what 1166 the noble and learned Lord said is reflected in what we have here and in the Jamieson case, although I accept of course that it is not put in quite that way.
§ Lord McCluskey
My Lords. I am not impressed by the answer to the effect that the person can be cross-examined. If one were to look at the case of Jamieson, one would find that were Marianne Robertson, who gave evidence—her evidence is printed in the report of Jamieson v. Her Majesty's Advocate—to be cross-examined she would, I presume, simply say, "I don't remember". Therefore the cross-examination will be of no value in challenging the statement which is attributed to her by the police.
Obviously when a person is asked the question, "Did you tell the police the truth?", as she was asked, such a person will not say, "No". She will say, "Yes", as Marianne Robertson did. So I do not see the safeguards as being sufficient. However, I do not propose to divide the House on the matter, and I beg leave to withdraw the amendment.
§ Amendment No. 10A, as an amendment to Commons Amendment No. 10, by leave, withdrawn.
§ On Question, Motion agreed to.