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2 Apr 2003 : Column 974—continued
Mr. Marshall-Andrews: Much of what the hon. Gentleman says is right, but does he not accept that there is a contrary position here? Not infrequently, when witnesses first make their statements to the police, they do not inculpate the defendant. On the contrary, they do precisely the reverse. It is only after a period of time that they then make the statement on which a conviction or an indictment is based. If this clause becomes law, the previous exculpatory statement will be evidence of the facts in that exculpatory statement. Does the hon. Gentleman not accept that that, far from being a chain on liberty, will be a ball and chain for prosecutions for a great deal of time to come? If the intention was to remove civil liberties by means of this clause, it is, as with much else in this part of this Bill, a spectacular own goal.
Mr. Grieve: I always listen with care to what the hon. and learned Member for Medway (Mr. Marshall-Andrews) says. We had a discussion about this a moment ago with the hon. and learned Member for Redcar (Vera Baird). I concede that the matter can cut both ways in that it can be to the advantage of a defendant or of a prosecutor. However, I will say to the hon. and learned Gentleman—I dare say that he will rise to provide examples from his own practice—that if somebody gives a statement that is exculpatory, then subsequently appears in the witness box and gives an incriminating statement, as matters stand the discrediting of that witness will remove any ability of the prosecutor to rely on his evidence thereafter. In view of the fact that the burden is on the prosecution to prove its case, not on the defendant to prove his innocence, the defendant is pretty well protected by the principle that a prosecution witness can be discredited in that way and their evidence reduced to nothing.
I stand by my principles. Although I accept what the hon. and learned Gentleman says, I apply my own criterion that the advantage cuts both ways. I would not wish a witness who incriminates somebody in the witness box but has previously given an exculpatory statement to be in any better position in terms of his impact on the trial than if it were the other way round. Whichever situation arises, that witness should be disregarded. In my experience, however, if it is a prosecution witness who is destroyed in that way, the prosecution's case tends to go down the plughole unless there is some overwhelming and compelling other evidence against the defendant.
Vera Baird: The hon. Gentleman will be familiar, as I am, with the position whereby a young witness can now give evidence by having a video made of what they say to police officers outside court. That would be hearsay were it not for a specific statutory provision admitting it as the evidence-in-chief of a young person. I imagine that the hon. Gentleman shares my anxiety that it should be possible for far more witness evidence to be taken by video at the earliest possible stage. That will all
be hearsay unless the rule mooted by the Government is passed, and what he suggests would stand in the way of that.
Mr. Grieve: I may have misunderstood what the hon. and learned Lady said. If clause 104 on inconsistent statements were to be removed, I do not see how that would in any way prevent what she is arguing for, which is the greater admissibility of evidence that is obtained outside the court setting. I was focusing on the matter only in terms of there being inconsistency between the one and the other. If I misunderstood her, I will gladly give way to her again.
Vera Baird: I think that I am looking at a slightly fuller picture. If the hon. Gentleman's problem is that he does not want to admit as evidence statements that are made out of court nearer the time, his obstacle would definitely be in the way of an expanded use of video evidence. That would inevitably mean that evidence taken on film soon after the event—highly probative and valuable material—could not be admitted because it was technically hearsay.
4 pm
Mr. Grieve: I understand what the hon. and learned Lady says but that was not the point that I was trying to make. I am not against such evidence being admitted. Indeed, although I have expressed reservations about the whole picture as regards hearsay, I tried to focus on the details while admitting that I found the issue complicated—as does the Minister. I do not suggest that such evidence should not be admitted. I was focusing on the narrow issue: where there are two completely inconsistent statements—a previously made statement, whether on video or given to the police, and a subsequent statement, made when a witness appears in the witness box, that is wholly different and, indeed, inconsistent with the first one. It is not a question of saying, "I can't remember what I said on the earlier occasion", but of saying, "What I said on the earlier occasion is not the truth."
In those circumstances, clause 104 allows the prosecutor or the defence to say to the jury at the end, "I invite you to prefer what was said in the earlier inconsistent statement as being the truth," while the current rule is that the witness would have been so discredited that the judge would have to tell the jury to disregard that evidence completely. That is the point that troubles me.
Vera Baird: I think that we are talking about the same thing. In fact, there will be only one version, will there not, if rules come into force to allow for wider videoing of evidence outside court from, for example, victims of rape or domestic violence and others. The opportunity for an inconsistent version will come only during cross-examination, will it not? The hon. Gentleman might have a different point if equal evidential value is to be given to a statement taken outside court and evidence given in court. What happens in a situation where a witness makes a statement that something happened on Monday but, in the witness box, says that it happened on Tuesday? Surely, that would be the real problem.
Mr. Grieve: I was not necessarily thinking of examples such as that. We have all seen cases where, in court,
witnesses change their recollection of events, which may be for completely innocent reasons. However, that is rather different from what I consider an inconsistent statement, which is when a witness says, "I saw the defendant hit his wife over the head with a pickaxe handle," but when he is in the witness box, he says, "The defendant was nowhere near the house at the time, he was actually down the pub with me". Currently, that would be the end of his evidence; it disappears from the picture. He is discredited and cross-examined and, unless there is other evidence, it may be the end of the case. However, under clause 104, that would not be the end of the case. The prosecutor would invite the jury to convict on the basis of the earlier statement. As an issue of principle, and mindful of the comments of the hon. and learned Member for Medway, that bothers me.I am conscious that we do not have much time left to debate this group of amendments, so I want to turn to amendment No. 121, which relates to multiple hearsay. I have read and re-read what was said in Committee on this subject by the Under-Secretary the hon. Member for North Swindon (Mr. Wills), yet I remain concerned about this part of the Bill. It has been said that multiple hearsay can go on for virtually as many times as one likes. It is different in quality and nature from hearsay. For example, it is not: "Somebody has told me that something happened", but "Somebody has told me that somebody told him that something happened".
Although the provisions are hedged around with a number of restrictions, some of which I do not find easy to follow, it seems that at least part of clause 106 would enable some extremely strange things to happen. For example, it would enable a statement to be read out in court that an individual had been told by another person that the character and reputation of the defendant were that he was a villain in the area where he lived. The basis for reading out such a statement would be the unavailability of the witness who was to be called to give that evidence. The Minister will correct me if I have got that wrong, but that is my reading of the clause. If I may use a colloquialism, it is bonkers. I do not see what possible weight or credibility such evidence could have or what use it would serve. In fact, a great deal of prejudice could accrue because the evidence could never be challenged. Material would be put in front of a jury that was infinitely capable of misleading and had no probative value at all.
In saying that, I am conscious that clause 106 also covers provisions relating to business documents. The Minister may remember—I do not recall whether he was present—that in Committee I said that I was extremely satisfied with the way in which business documents are admitted as hearsay evidence in criminal cases. I regularly use that principle under current law and I am satisfied that it works, so I assure the Minister that that is not what I am aiming it. However, the clause goes much further. I have not sought to redraft the clause, because redrafting it is beyond me, but I am convinced that the example I have given—if it is correct—is one that I am not prepared to tolerate arising under the Bill. If we go down that road, we will expose ourselves to cases in which material is placed in front of juries that can never be challenged and is highly prejudicial, deeply tendentious and unreliable, because it has passed through a number of persons or statements before it appears in front of the jury. However, I specifically exclude business documents from those comments.
Time has passed. I hope that the Minister is able to respond, but I am minded to ask the House to divide on the amendment.
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