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2 Apr 2003 : Column 970—continued
Vera Baird: The hon. Gentleman complained a moment ago that one problem was that the provisions would give more discretion to the judges. Amendment No. 151 would require a judge to decide what would be substantially the basis for a conviction if he admitted a further statement. That would be a very subjective judgment. What does the hon. Gentleman suggest the word "substantially" means in the context of the amendment?
Simon Hughes: The hon. and learned Lady makes two points. First, of course the amendment involves judicial discretion, as is always the case when a judge determines matters of procedure. The amendment would improve the list that the Government give. If we are to have judicial discretion, for example, the amendment would ensure that that discretion does not allow people to be convicted—"wholly or substantially"—on evidence other than what has been agreed, and which is not before the court. The hon. and learned Lady knows better than I that a huge amount of evidence before courts is agreed by both sides beforehand. Vast numbers of statements are accepted without dispute.
Secondly, we may need to revisit the terms "wholly" and "substantially". "Wholly" is self-explanatory, but the word "substantially" is used regularly in criminal justice legislation to mean "nearly wholly". We could come up with proper definitions, but the point is that we must be careful that we do not start convicting people on the basis of evidence that is not substantially evidence before the court. I am sure that the hon. and learned Lady will agree with that, as the Joint Committee on Human Rights made the same point.
The hon. Member for Beaconsfield (Mr. Grieve) recollected vividly in Standing Committee a debate on emergency powers for Northern Ireland. There was a
possibility that the law that was passed—happily, it has never been implemented—could have people convicted on hearsay evidence alone for terrible terrorist activities in the past. For example, that hearsay evidence could include what a police officer or member of the armed services had heard from members of the intelligence services. We can understand why people would not be keen for members of the intelligence services to be brought before the court, but one is getting into very dangerous territory if one allows people to relate second hand the basis for their belief that a person is guilty.
Mr. Garnier: I largely agree with the broad thrust of the hon. Gentleman's argument, but, in connection with amendment No. 151, would it not be better to allow the judge to make that decision at the end of the prosecution case, rather than before he knows what the whole of the prosecution case is? Not until the end of the prosecution case will the judge know whether a piece of evidence constitutes a substantial part of the case, or the whole of it.
Simon Hughes: I accept that. Later, we will debate the stage at which applications can be made for a case to be dismissed. The hon. and learned Gentleman makes a valid point, with which our amendment is not inconsistent. Certainly, the matter should wait until the whole case has been seen, when, to put the matter bluntly, it will be possible to know how much evidence is direct, and how much indirect.
Mr. Garnier: I do not want to push at an open door, but the problem with amendment No. 151 is that it states that
- "the court shall in no event admit such a statement".
Simon Hughes: Amendment No. 151 seeks to deal with the Government's reversal of the proposition that we want to be the starting proposition. If we could go back to making the law say that hearsay evidence cannot be admitted except in certain specified cases, such a statement would be admitted at the time in the prosecution case when it fell to be admitted and the judge could then make an evaluation at half time, I would be happy with that and would withdraw amendment No. 151, because clause 99 would have been recast.
The final matter of significance, the multiple hearsay provision, is covered by amendment No. 106. I do not want to steal the thunder of the hon. Member for Beaconsfield, but the proposal is that there should be a provision to allow what might be called "double hearsay". Put simply, that amounts to A saying that B said that C shot the deceased. That is far removed from hearing evidence based on direct sight or sound in the court.
Although we have tabled amendments to the clause, we would support its removal, as I said. Multiple hearsay evidence is very thin evidence indeed. It is bad enough when someone says, "Bill Jones told me that they saw them breaking into the shop". If one never hears Bill Jones tell his story—if someone says Bill Jones
heard that Amin Patel said last Tuesday that someone was breaking into the shop—it is seriously risky. We must be careful not to go down what is a dangerous slippery slope even with certain protections.The law ought to be codified and tidied up. The Law Commission was right: the presumption should be that hearsay evidence is not admissible. The clause does not provide for that, which is why we tabled the amendment.
3.45 pm
Mr. Grieve: This group contains a raft of amendments that touch on hearsay, which is one area that I have found extremely difficult.
Mr. Grieve: The Minister helpfully indicates that he has too. When we dealt with the matter in Committee we found that it was one of those issues on which there was general agreement at the outset on the broad principle and everyone felt that the hearsay rules ought to be tidied up. The more one goes into the details of what is proposed, the more one has anxieties and reservations and tries to dismiss them from one's mind. I say that as a preliminary comment as I can assure the Minister that I am convinced that tidying up the rules on hearsay would be beneficial. Considering the totality of what is being proposed in this chapter, with which the various amendments tabled by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) and the amendment that I have tabled deal, I still have serious anxieties.
First, on the generality, which the hon. Gentleman mentioned, there appears to be a measure of agreement that hearsay evidence should be made more readily admissible. He rightly highlighted when speaking to his first amendment, which may be symbolic, that the wording makes hearsay evidence admissible whereas he would like to preserve the basic rule that it is not to be admitted except in certain circumstances. He may put that amendment to the vote and I shall support him if he does, not because I think that it makes a huge difference to the drafting of this part of the Bill, but because it gets the argument and discussion off to the right start. If that is the amendment that he chooses to put to the vote from this group, I will back him on it.
I shall focus, however, on the hon. Gentleman's amendment No. 154 to clause 104, which deals with "inconsistent statements", and is an amendment that has concerned me particularly. This is an example of an area where I have serious doubts about whether the House is doing the right thing. I shall explain why, although we did discuss this in Committee.
As the Minister knows, the present position is that if someone goes into the witness box and gives evidence that is inconsistent with a previous statement that he or she has made, that statement can be put to them—indeed, it can be put to them by the counsel who has called them, if necessary. The purpose of doing so is to destroy the witness's credibility and reduce it to zero. Having done so, no weight can be attached to what they have said in the witness box or previously. The witness is taken out of the picture in terms of the credibility of their evidence.
In clause 104, the Government have chosen to alter that principle completely. They have chosen to embark on a particular route, saying that, where there is a previous inconsistent statement, irrespective of who made it, that statement can be put to the witness to comment on, agree with or denounce. However, if a denunciation takes place, the court and jury can then be presented with the hotchpotch mixture of what the witness says in the witness box and maintains is true, and what the witness said previously in a statement to the police and claimed, at the time, was true. The jury can be invited by one side, the other side, or both, to choose which version they prefer and to treat that version as the truth. If they are satisfied that one version is the truth, they can, if necessary, convict a person on that evidence.
Taking that route may be tempting. In Committee, we discussed examples of witnesses who make detailed statements to the police that incriminate another person and lead to a charge being brought because the police investigation into the statement suggests that it is credible. The case then goes to court and, for reasons that often never emerge—perhaps to do with fear, intimidation, a change of mind, or the relationship with the defendant in the dock—the witness refuses to say anything or gives a totally different version of events, exculpating the defendant.
I am the first to accept that, in such circumstances, there is a great temptation to accept what clause 104 provides for and say, "Well, the previous statement should be allowed to stand as evidence, because that way we will get the conviction when the witness fails to come up to proof in the witness box." However, the more I have reflected on clause 104—and I reflected on it after the Committee stage as well as during it—the more troubled I have become by the principles that underpin it. The principle of our system of justice is that we invite juries to convict people if they are satisfied that they are sure that those people are guilty. If a person comes before a court and says—often quite articulately in my experience—that their previous statement was a load of rubbish and that what they are now saying is true, it is a bold person who can claim to be able to establish, when a witness has discredited himself or herself so thoroughly in that way, that any part of the statement should be accepted. The temptation is there, but the previous rule existed precisely because it was felt that that temptation could all too easily lead to a person being wrongly convicted. Perhaps the truth was that the original denunciator had lied to the police in a complex fashion because they had a grudge against the person, but had since changed their mind. We have all seen that happen in the witness box, yet we are about to establish a principle that allows someone to be convicted on such evidence.
I remain deeply troubled by this change in our legal principles. I wonder what advantage will accrue from it. Apart from anything else, I would have thought that any sensible judge, when faced with this situation and desirous of allowing justice to be done, would have to be overwhelmingly cautious in any summing up that he gave to the jury about the enormous dangers of convicting on such evidence. The issue bothers me, and I see that my hon. and learned Friend the Member for
Harborough (Mr. Garnier) is nodding; he has experience of sitting as a recorder, as others in this Chamber may have. We should not be taking this route.
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