AMENDMENT TO COMMONS AMENDMENT No. 9 (Hansard, 5 July 1995)

§ Lord Macaulay of Bragar
My Lords, I beg to move Amendment No. 9A as an amendment to Commons Amendment No. 9.
The amendment seeks to delete paragraphs (2) (b) and (c) of the new clause. The noble and learned Lord, Lord McCluskey, has tabled an amendment to leave out paragraphs (2) (c),(d) and (e), so it may be for the convenience of the House if we discuss the whole principle at the same time. I do not know whether that is a good idea, but we are dealing with the same topic.
I am rather perturbed by this provision. I have tried to make inquiries but at the moment I do not have precise information. However, as I understand it, the provision was introduced in another place at the last minute and went through, as they say colloquially, on the nod. No one noticed what was going on. I am not saying that anyone was being dishonest but I find it very strange that the noble and learned Lord the Lord Advocate goes 1158 along with what the Law Commission said in this instance but with regard to the Children (Scotland) Bill and the Law Commission's view on violence to children the Government did not accept what the Law Commission said. So let us forget the Scottish Law Commission. It does its best. Let us look at this particular piece of legislation and see what it is all about.
We have hearsay evidence in civil cases, which was introduced some years ago. Hearsay evidence was admissible at the discretion of the judge. Discretion is built in here as well. But the big distinction is particularly that in southern proceedings it is not the judge who is hearing the evidence, but the jury. They are an entirely different species. Of course a judge can dismiss from his mind certain matters and presumably treat them neutrally. But once the so-called "evidence" of a statement is before the jury, the simple truth of the matter is that the jury will hear the evidence and say, "Well, he told that to the police and he has disappeared".
The disturbing phrase in Clause 9 is that the evidence, shall be admissible in those proceedings as evidence of any matter contained in the statement". How on earth is that to be tested? There is no witness and therefore no cross-examination. Are we really saying that if a statement is taken, for example, at a police station that that is not going to be tested before the jury? For example, it may be presented to a jury in a murder case and it will be said, "That is what Joe Bloggs said but, by the way, he is not here because he has scarpered. He gave a statement to Inspector Bloggs and there is a statement from the inspector. That is what he said and that is the evidence".
I am not a judge, but no doubt the noble and learned Lord, Lord McCluskey, will give us greater insight into how judges approach these matters. The judge can say until he is blue in the face that he will ignore this or that and treat it on the basis that there has been no cross-examination. But that is not good enough. I cannot remember the name of the Bill, but in 1990 there was provision for taking evidence by satellite, for example. That matter is not dealt with here. I am looking at subsection (2) (b) which says that the person who made the statement, is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner". Presumably, that is a reference to the 1990 Bill as regards taking evidence by satellite. For example, in a criminal trial how does the defence know that it is not possible to obtain his or her evidence, in any other competent manner"? It is laying out a minefield for delay in criminal trials.
I now turn to subsection (2) (c). In making the statement the person, is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken". That does not say by whom. Does that mean that the mythical Inspector Bloggs comes in and says, "We have tried to find Charlie Smith, but we cannot, so let us just get on with the trial. Here is a statement that he made 1159 at the police station". The prosecutor then shows that to the jury. According to this Bill, as drafted, that statement becomes evidence. I find it a disturbing piece of legislation. I suggest to the noble and learned Lord the Lord Advocate that this is legislation done in haste and that it would be better to tread carefully rather than to rush in and just incorporate this piece of legislation into the Criminal Justice Bill. In my view, that will cause more trouble than it is worth. I hope that the Government will take it away and think again. I beg to move.

§ Lord McCluskey
My Lords, I believe that it would be convenient if I speak to my Amendment No. 9AA. First, in response to what the noble and learned Lord the Lord Advocate said, I welcome the good parts of this amendment. If it does remedy what I perceive to be the injustice in the McLay case then I certainly welcome it. I believe that the noble Lord, Lord Macaulay, will find the answers to most of his questions in the report of the Scottish Law Commission, in particular in paragraph 5.45 dealing with television links and the legislation that governs it.
As regards this general clause and subsection (2) introduced by Amendment No. 9, paragraph (a) is perfectly tolerable because to some extent it governs the common law in relation to persons who are dead and may be in relation to certain others. I am not very happy about the notion of "unfitness". I would like to think that that would apply only when the person was permanently unfit or unfit for such a length of time that it would be acceptable to proceed with his hearsay evidence. However, that is acceptable.
Equally, paragraph (b) is acceptable except that once again it would be desirable to have written into the paragraph the words "within a reasonable time" so that it reads: not reasonably practicable to secure his attendance within a reasonable time". Then one could proceed to introduce the hearsay evidence. No doubt that is a consideration which the judge will bear in mind when he applies that. On that basis, I can accept it.
My Amendment No. 9AA proposes the omission of paragraphs (c), (d) and (e) from subsection (2). I apologise for the fact that it is a manuscript amendment but these matters arose at rather a late stage. As the noble Lord. Lord Macaulay pointed out, these paragraphs permit, within the confines of the clause, that a policeman can state that he heard an oral statement by a person who was a competent witness. He might say, "I heard him say, 'It was not me what done it, it was X'''—that is, the accused.
Thus X risks being convicted on the basis of police evidence and hearsay. As the noble Lord, Lord Macaulay, pointed out, that cannot be cross-examined. The witness cannot he cross-examined in the circumstances of this section and the policeman will simply say, "That is what he said". He cannot be cross-examined about the details. I do not like that at all.
1160 Your Lordships will see from paragraph 5.49 of the report of the Scottish Law Commission that its proposal in relation to paragraph (c) was not one which met with favour from the consultees. It writes that the majority of our consultees did not favour the creation of an exception to the hearsay rule on this ground, considering that such an exception would he open to abuse. I endorse the view of the majority whom the commission consulted that this is open to abuse.
So this new clause effects a very substantial alteration in the law relating to hearsay. I shall try to identify the weaknesses only once. First, the evidence will not be able to be tested or challenged in cross-examination. Secondly, as the commission points out in paragraphs 4.4, 4.5 and 4.18, a conviction based on hearsay evidence which cannot be subjected to cross-examination may well be a breach of Article 6 of the European Convention on Human Rights. I do not believe that we should he rushing into legislation in a fashion which may result in a breach of the convention.
Furthermore, this hearsay evidence can he brought in as evidence of the fact, without any risk at all that the maker of the statement which constitutes the evidence can be charged, for example, with perjury even if his statement is quite deliberately false. Nor can a person who makes up the statement or who persuades the missing witness to make the assertion, be charged with subornation or perjury because there is no perjury involved. As a matter of principle the evidence, in most circumstances, cannot be the best evidence. So the danger is indeed real.
What the new clause enables to be done is that the accused person, or some other interested party or an over-zealous policeman, can produce as admissible evidence of the facts of the case evidence which he knows to be false and which he knows the alleged maker of the statement would never say in court, because the alleged maker of that statement would not take the risk of being charged with perjury as regards the making of the statement.
We have always been deeply suspicious of hearsay evidence except where it is absolutely essential—and I do not think that the essentiality is made out. I have read carefully the thorough report of the Scottish Law Commission which considered all these matters in great detail and I regret to say that I do not find the arguments persuasive in relation to these matters.
In paragraph (c), one is talking about a person who cannot be found. A person can, in effect, be made to disappear either by the accused person, the accused person's friends or even by an over-zealous policeman. No doubt the Minister will point to subsection (3) and say that evidence of a statement shall not be admissible unless the judge is satisfied that the person whose evidence is adduced in that form is not missing by reason of some activity on the part of the person in support of whose case the evidence is to be given. What worries me about that is that it is extremely difficult to prove why a person is missing. If he simply does not turn up and nobody seems to know where he is, it is impossible to satisfy the judge as to who, if anyone, caused the disappearance. That applies whoever caused the disappearance. In any event, if a policeman were 1161 responsible for encouraging the witness to disappear, which could happen, it is not at all clear to me that in subsection (3) (a) the policeman would fall under the description of, the person in support of whose case the evidence would be given", because the policeman is not a party to the case. It is not his case; the Lord Advocate is, in a sense, the person who owns the case on that side. Therefore, with respect, it appears to me that the safeguard contained in subsection (3) is an empty and fairly useless one.
In case I should be thought to be scaremongering in suggesting that witnesses can be made to disappear, I recall a case of some years ago in which, acting as a prosecutor, I was approached by a very high-ranking policeman and asked if a particular witness who was in police custody could be excused further attendance at the trial. I could not release him because the defence said that they wanted him there. However, within three hours the witness had escaped through an open lavatory window, his handcuffs having been removed to allow him to go to the lavatory. He was not then available for the trial. One would not have to be unduly cynical to suppose that the police had decided that he was better out of the way. That was no doubt because he was an informer and they were endeavouring to protect him. So, it can happen, and it worries me that people on the accused's side of the fence, particular professional criminals, might pay for or otherwise cause witnesses to disappear, and thus be unable to put before the court evidence which would not otherwise be available.
Much the same considerations apply to paragraphs (d) and (e). It is common to find people refusing to give evidence in court. It is deeply worrying that the prosecution can then come forward and present substantial statements to the court.
I should like to make just one other point in that regard. It is a curious phenomenon that if evidence is taken in the form of precognition by an independent officer who is a servant, in effect, of the Lord Advocate, that precognition cannot be used in order to adduce hearsay evidence; but if a statement is taken or allegedly taken by a policeman in his notebook or on the back of an envelope while he is in the back of a car, that can be introduced. Once again, I am surprised at the discrimination against a precognition (other than a precognition on oath) and in favour of the police statement. I do not favour that. In addressing the general matter, I hope that I have made my points on Amendment No. 9AA.

§ Lord Rodger of Earlsferry
My Lords, in replying briefly, I acknowledge that this is not something which noble Lords will find altogether easy because it is a major and important change. It is always correct in matters of hearsay evidence that they are not subject to cross-examination. That is why we have generally excluded them. However, it has never been an absolute rule. Death is an obvious example, but judges have always had to comment on the fact that there has not been any cross-examination. The evidence here will be in the same category. It will therefore be a matter of comment that it has not been subject to 1162 cross-examination. I note, however, that under subsection (4) it will be possible to lead evidence in relation to credibility and reliability.
I also accept that there is always a risk that people may be made to disappear. As we know, that happens at present. It is a question of judgment as to whether, when people have disappeared, their evidence should nonetheless be available. Obviously, it is not a good thing if an accused person can make a witness against him disappear, because the Crown thereby loses the evidence. It is evidence, however, which will be subject to the comment that it has not been able to be cross-examined. Therefore, I accept that it is a question of judgment.
In the circumstances, all that I can say is that we have considered the matter carefully in the light of the report and having particular regard to Perry and Maclay. We believe that this is the best way forward. Obviously, we shall consider the matter as time goes by, but we believe that this is the correct way to proceed.

§ Lord Macaulay of Bragar
My Lords, before the noble and learned Lord sits down, can he advise your Lordships as to the timetable in another place when this amendment was introduced there? At what stage was it introduced? That is a matter which concerns me. Indeed, I hope that everybody who is interested in the administration of justice in Scotland will be concerned that we have not had time to consider the proposals. We know that they come from the Scottish Law Commission, but that is not the point. Lawyers, the Law Society and others interested in these matters should have time to consider the provisions.

§ Lord Rodger of Earlsferry
My Lords, the amendment was introduced in Committee. As I recall, the report appeared after the recent break. I think that we would have been open to criticism if we had not taken the opportunity presented by this Bill to bring forward legislation prepared by the Law Commission to deal with the very acute problem of Perry and Maclay.
Lord McCluskey: My Lords, I am proposing not to move my amendment, but I should like to reply specifically to the point raised by the noble Lord, Lord Macaulay. The matter was dealt with at the sixth sitting of the Scottish Standing Committee. It was introduced by Lord James Douglas-Hamilton who spoke, broadly speaking, in the same terms as the Lord Advocate has spoken today. There was no opposition to it at all. It was then referred to again on Report and there was again no opposition to it. Therefore, as the noble Lord, Lord Macaulay, said, it went through on the nod.

§ Lord Macaulay of Bragar
My Lords, I beg leave to withdraw Amendment No. 9A.