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2 Apr 2003 : Column 977—continued
Vera Baird: The hon. Gentleman has given an example of a case in which I should have thought it intensely unlikely that anyone would try to rely on multiple hearsay about someone's reputation, so perhaps it is not a proper way to test the efficacy of the provision. I have thought of an example in which multiple hearsay might be advantageous. It closely resembles a case that I put to him in Committee, but takes it one step further.
The hon. Gentleman will remember my describing a case in which someone is killed by having his throat cut and with his dying breath says to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), "Dominic Grieve did it." I arrive on the scene a second later, ask the hon. Gentleman, "Who did he say did it?" and he replies, "Dominic Grieve." Then something happens—may it not—to the hon. Member for Southwark, North and Bermondsey. The likelihood of the deceased or the hon. Gentleman lying in the heat of the moment is remote. The evidence is second-hand hearsay but it would be admitted under the provision, and rightly so.
Mr. Grieve: The hon. and learned Lady makes an interesting and persuasive case on an example. Equally, she accepted that the example that I gave was one that, if it arose, would cause her some concern. I believe, however, that the Bill as drafted will have that effect.
I shall invite the House to delete clause 106. In doing so, I am saying not that the clause is valueless, but that as drafted it is unsatisfactory. If the Minister assured me that the Government will re-examine the provision, I might change my mind. However, my current intention is to vote against it, because it is likely to cause harm that will outweigh the benefits it generates.
Mr. Marshall-Andrews: I rise briefly to congratulate the Government. In the field of criminal justice, that is such a rare and beautiful thing that I cannot resist the opportunity to do so. Unhappily, in that field one often has the sadness of saying that the Government attack civil liberties and the liberties of individuals either through the substantive law or through the law of evidence, which we are discussing. However, on this occasion, the Government are making a serious attempt not to disadvantage the defence but seriously to disadvantage the prosecution.
Let me expand that point in general terms. Many safeguards are built into this part of the Bill. The truth is that the judge—any judge—simply will not admit hearsay, let alone double hearsay, in circumstances in which it is unfair or likely to lead to an injustice. Because of the European convention, the provisions apply on both sides, but whereas the Crown, by reason of the forces it has at its disposal, rarely has difficulty obtaining first-hand primary evidence and will therefore be locked out by the judge if it attempts to bring in secondary or hearsay evidence, the same does not apply to the defence. A defence application to call hearsay evidence
on the basis that the defence has been unable, given its best endeavours, to obtain the primary evidence is therefore much more likely to find favour with a trial judge. I say that after having prosecuted in my quite long professional life at least as many serious criminals as I have defended—I am pleased to say with almost the same rate of success.As prosecution counsel, it causes me very considerable concern that, at the end of a case, a defendant—and, let us postulate, a serious and professional defendant—with very little by way of defence will be able to adduce evidence before the court and say that Joan will be called to say that, in a conversation that she had with Mrs. Kray, Mr. Kray said that he had done it. Of course, neither Mr. Kray nor Mrs. Kray will be available, for the very good reason that they are on the run.
At the moment, quite rightly, such evidence would be wholly and completely inadmissible. If the provisions are passed, it is extremely likely that it will be admitted and that a cast-iron case against very serious criminals will fall because of this piece of civil libertarian legislation. I suspect that that was what the Home Office and Home Secretary had in mind when they engineered the measure, and as I say, a wonderful thing it indeed is, if somewhat aberrent, given the general track record. If the provisions are passed, what we are likely to see is, I regret, injustice being done, but not to the defence.
Having congratulated the Government in that fulsome way, I shall say straight away that I shall not vote for the provisions. I shall not do so because I would not dream of voting for provisions that, if they are put into effect, will give effect to matters and measures that the Government do not intend. To that extent, I will abstain. I suspect that the provisions will be brought into effect and eventually be put into effect by the courts, and that the prosecution and the Government will find in the fullness of time, I am sorry to say, that they have scored—if I may repeat the metaphor—a spectacular own goal.
Mr. Garnier: I shall be very brief, because I think that the knives come down at 4.20, which will leave four whole groups of amendments undiscussed. I think that it is an outrage that this House is permitting this Bill to go through largely undiscussed. I hope that the other place bears in mind what I have said and the procedures that we foolishly adopt in this House in considering such legislation.
There is a spurious attraction to what the hon. and learned Member for Medway (Mr. Marshall-Andrews) said; he is an accomplished after-dinner speaker, and we are a long way before dinner, but I think that that was one of his better contributions to the art of after-dinner speaking.
I wholly accept the arguments advanced by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Member for Southwark, North and Bermondsey (Simon Hughes), and I ask the House to reject the provision as it is currently drafted by the Government. It comes out of the school of saloon bar legislation that says "It stands to reason, guv; somebody said that he's guilty, so he must be guilty." We should be extremely careful, because hearsay and rumour are very
close relations, and if we are to start convicting people on the basis of rumour, we might as well pack up and go home.
Hilary Benn: There is a great deal to respond to and I have a very short time in which to do so, but I shall do my best.
The hon. Member for Southwark, North and Bermondsey (Simon Hughes) prefaced his remarks by speaking about the importance of the fundamental principle in our criminal justice system that, in the end, a case has to be proved beyond reasonable doubt before somebody can be convicted and potentially deprived of their liberty. It should not need saying, but, as he raises the issue, it would be remiss of me if I did not make it absolutely clear that none of the provisions on hearsay, which we are debating, nor any on bad character, which we will come to shortly, changes that one iota. That remains the bedrock on which our system is based.
4.15 pm
I concur wholeheartedly with the comment made by the hon. Member for Beaconsfield (Mr. Grieve), who admitted to the highly complex nature of the law on hearsay, and other hon. Members in the Chamber at the moment are better qualified and have much more expertise than I do. Notwithstanding that fact, I wish to say that, like the Law Commission, the Government accept that hearsay evidence is generally less satisfactory than first-hand evidence, but there may be cases where that is not so and there are other cases in which it is all that is available and should therefore be considered by the court. That is the issue with which the House has to grapple, and all hon. Members recognise that, after careful consideration, the Law Commission said that the present law was not only exceptionally complex but difficult to interpret. That is what the Bill seeks to change.
The second issue that I want to address is the difference between the inclusionary as opposed to the exclusionary approach because it will have salience in a later debate, when we shall argue, in essence, about the same principle. In effect, the relevant phrases are "admitted, but only if" as opposed to "not admitted unless". I think that I am right in saying that the hon. Member for Beaconsfield said in passing that in one sense that does not make a lot of difference, and I agree with him. So we should focus our attention on whether we have the right safeguards to cover the circumstances in which there is general agreement that hearsay material should not be admitted.
Thirdly, I agree with the argument that we should seek to trust juries in weighing all the evidence that they have before them, in reaching a judgment and deciding whether they can reach a verdict that is beyond reasonable doubt. The hon. Member for Southwark, North and Bermondsey advanced that argument and then attempted to knock it down. I shall give a practical example because it is very hard, given the complexity of the issue, for non-lawyers to understand precisely what we are talking about.
I shall refer to the celebrated Kearley case. During a police raid on a suspected drug dealer, a number of people either called at the door or telephoned the house asking for drugs. Not surprisingly in those
circumstances, the dealer's clients were not willing to give statements to the police officers who opened the door. The Court of Appeal held that the prosecution was wrong to rely on that evidence because it was inadmissible hearsay. In summing up the issues in that case, however, Lord Justice Griffiths stated:
- "I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply 'then the law is an ass'"—
The Government's belief in the need for inclusionary reform, which is the central thrust of the proposals, is supported by the Runciman royal commission, which concluded that hearsay evidence should be admitted to a greater extent than at present, and by Sir Robin Auld, who proposed that hearsay should be generally admissible in criminal proceedings. The terms of rule are almost but not completely consistent with the Law Commission's widely supported proposal that there should be automatic admission for certain categories of evidence, with judicial discretion to admit other cogent and reliable evidence.
The final point that I want to make is that clause 99 makes it absolutely clear that such evidence will be admitted only if the relevant criteria apply. We believe that this is a sufficient safeguard and that the many proposed amendments would send out the wrong signals to the courts on how they should approach this issue.
Amendment No. 149, which was not directly addressed, would have serious implications for a swathe of evidence in our criminal courts, including the common law categories which have—
It being three and a half hours after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question necessary to dispose of business at that hour pursuant to Order [this day]
Question put, That the amendment be made:—
The House divided: Ayes 182, Noes 297.
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