AMENDMENT TO COMMONS AMENDMENT No. 12 (Hansard, 5 July 1995)

§ Lord McCluskey
My Lords, I can deal briefly with manuscript Amendment No. 12A. Your Lordships will see that the purpose of the amendment is to delete the words "or without" from paragraph (2) (b). Although we are talking here about a statement in a document, when one unravels the definition one finds that a statement in a document includes an oral statement which a policeman may have written down in a document, being a police notebook or the back of an envelope. That is unfortunate because it cannot be right to allow a policeman to create a document of this kind without the knowledge of the alleged witness to it. That is precisely what the clause, as presently drafted, does.
One is already going very far in allowing in such hearsay evidence; but, surely, in the circumstances, we do not need to include the words "or without", thus enabling the policeman to appear at the trial and make an assertion that a statement was made which he overheard as a bystander and wrote down on a piece of paper, which is a document within the meaning of the new clause. I beg to move.

§ Lord Rodger of Earlsferry
My Lords, I believe that if these words were inserted, they would inappropriately circumscribe the provision. For example, let us suppose that someone were to admit to killing someone else in the presence of a third party. If that third party, being shocked and so forth, thereafter wrote down an account of what he had heard, I believe that would be invaluable evidence in a document, the accuracy of which would be likely to be much greater than the accuracy of his recollection some months later. Therefore, in that situation it would be unfortunate if that were not admissible simply because it had not been taken down in the presence and with the knowledge of the person who had made the confession.
One can see that if the matter were limited in that way, it would be unlikely that people would sit there as they heard a confession and write it down, whereas if they had noted it down shortly afterwards, or whenever it might be, it would be likely to be accurate and an important element. It is for that reason and in such circumstances that we believe it should be with or without the knowledge of the person concerned.

§ Lord McCluskey
My Lords, I hope that tomorrow the noble and learned Lord the Lord Advocate will read carefully what he has said today because I believe that it is entirely and utterly inaccurate. The new clause, which is embraced by Amendment No. 12, applies to sections covered by Amendments Nos. 9 and 10 and not Amendment No. 11. Therefore, it does not relate to 1169 confessions. If a policeman writes down a confession, whenever he does, that is admissible under the present law. However, this provision relates to statements which are admissible under the new clause as covered by Amendments Nos. 9 and 10. In other words, they include statements made by witnesses rather than by accused persons, except in the special circumstances covered by the new clause introduced by Amendment No. 11. I shall read Hansard most carefully but I believe that the noble and learned Lord has misunderstood the issue—

§ Lord Rodger of Earlsferry
My Lords, I was thinking, for example, of incriminees, who are an important category of person. If someone who might be an incriminee had made an admission that would have been written down and that would be important.

§ Lord Macaulay of Bragar
My Lords, does not the debate that has taken place between the noble and learned Lord the Lord Advocate and the noble and learned Lord, Lord McCluskey, demonstrate that this piece of legislation should be taken away and considered? It is ridiculous that at this time of night we are discussing the matter in haste because we are under pressure to deal with another Scottish Bill. I make no criticism of those involved; we thought that we could deal with both pieces of legislation and that we could debate this Bill in the so-called dinner hour. However, it is now farcical that we are discussing matters of such great importance to the law of Scotland in such circumstances in your Lordships' House.
I urge the Government—and they will not be criticised from this side of the House—to take the proposed legislation away and to allow us to look at it properly. We can then obtain representations from the judges and all those concerned. These pieces of evidence are crucial to the administration of justice in Scotland. Attending your Lordships' House is not my only duty—I have other things to do—and I have had no time to do justice to the amendments. I am sure that other members of the judiciary have not even seen them. It is ridiculous that the law of Scotland should be dealt with in this cavalier manner and I lodge a firm protest about what is happening.

§ Lord McCluskey
My Lords, I hope that this is the last time that I shall rise to my feet. I listened to what the noble and learned Lord the Lord Advocate said. If he was talking about the case of a possible incriminee, I withdraw what I said. I shall read carefully what the noble and learned Lord said because perhaps I misunderstood the way in which he put it. Perhaps, like myself, he is in the interests of haste abandoning his notes and thus putting the argument more briefly than he otherwise would. I beg leave to withdraw the amendment.