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Lord Carlile of Berriew: I ask the noble Lord to consider his words carefully when he talks about inconsistency and discretion. In the past few minutes, he has talked about certain categories of evidence being automatically admissible. Does he really mean that? As I understand this chapter, although it is stated in a negative rather than a positive form, exactly the same kind of judicial discretion will exist as has existed before. If that is a correct interpretation of the Bill, with great respect to the Minister, what he said cannot be quite right. Can he clarify that?

Will the Minister give us some examples of the difference that will be made in cases? The lawyers will always earn their money trying to interpret evidence in different ways and persuading judges. However, those who collect evidence—the police, health authorities and others who carry out investigations—should know what kind of hearsay evidence the Government think is likely to be admissible in future.

Lord Davies of Oldham: I recognise the noble Lord's anxiety. Of course discretion will still be exercised. We seek to make clearer and define more effectively the area within which that discretion should be exercised, against the background of the Law Commission's anxieties, which are clearly reflected in its evidence on the point.

The anxiety that I was trying to identify on the amendments is that, effectively, they would take away the move that we seek to make in the Bill. They would return us to the previous position, in which we would not effect what we regard as the beneficial changes contained in the legislation, which were spoken to so accurately by the noble and learned Lord, Lord Cooke. I had hoped that his considered contribution would absolve me from having to present the case to quite the extent that I have done, but I recognise the appropriate challenges made.

The next issue is the extent to which the court should be able to consider other out-of-court statements falling outside the recognised categories of admissibility. Under Clause 107(1)(d), reliable statements not falling within one of the recognised categories, or a preserved common law rule, will remain potentially admissible. Amendment No. 149 would again remove that discretion.

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One of the most forceful criticisms of the operation of the current hearsay rule is that reliable evidence can be excluded because it does not fall within any of the pre-existing categories. That can sometimes make it impossible for the defendant to put before the court credible evidence which points to his or her innocence, thus rendering a fair trial impossible.

As the human rights organisation Justice has commented,

    "it is a powerful argument against a strict exclusionary rule that miscarriages of justice can be avoided only if the appellant is lucky enough to find a court prepared to decide his case otherwise than according to the law".

If the present inflexible rule can cause injustice for the defendant, there is likewise a risk of injustice when the prosecution is prevented from leading highly probative evidence. The Law Commission was strongly influenced by the need to prevent future injustice. It concluded that an inclusionary discretion was essential and should be available to both the prosecution and the defence. The vast majority of those consulted agreed. In the light of those strong concerns, I am bound to ask the noble Lord to withdraw the amendment.

Amendment No. 151 seeks to replace Clause 107(2)(h) and (i), and would require the court to take particular account of any unfairness to the parties when hearsay is being admitted, as well as any other relevant factor. Those concerns are already covered by the list of factors to be considered under subsection (2), in particular paragraphs (h) and (i), as already drafted. They would require the court to take account of any difficulty in challenging the statement and the extent to which that difficulty would prejudice the opposing party.

That test is intended precisely to allow the court to consider any unfairness to the parties which might occur were the evidence to be admitted. Any further clarification on the point seems unnecessary. Further, the court is already required to take into account any other relevant factor by the opening words of subsection (2). In the light of that reassurance, I hope the noble Lord will not press those amendments.

Lord Hylton: I have listened to this fascinating debate with interest. However, I want to draw attention to the words printed at line 21 of page 68 which are,

    "assuming it to be true".

I note that similar words occurred in Clause 102.

Why should such an assumption be made and, if it is made, how will it be tested? It may be that subsection (2)(h) is relevant, but if so, how is the amount of difficulty involved to be assessed?

Baroness Scotland of Asthal: I hope that noble Lords will not mind if I respond to the question. Under Clause 107, one of the issues that must be determined before one considers whether the evidence should be included is to assume on the basis that one says, "If that which is not admitted is true, does it have the quality to cause the court to say that it should be admitted into evidence?".

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The importance of the evidence should be considered on the assumption that it is true, when the judge comes to decide whether he or she will allow that particular matter to go before the jury. There is no other way of dealing with it. The evidence is proffered in the way that it is, but the court has to determine whether its quality and value to the case make it necessary for it to be admitted. There may be other challenges when the evidence comes in. The defendant may still say, "It may be hearsay, but it's not true". The question is: should the court have the opportunity to hear that challenge, or should that evidence be excluded? Have I made myself clear? I think that the noble Lord still feels puzzled.

Let us take the example given by the noble and learned Lord, Lord Cooke. In the case of Kearley, there was evidence that a number of people were phoning the house and asking to speak to the defendant by name and indicating by their comments that he had been the supplier of drugs in the past and that they were seeking supply on that occasion. In assessing whether that evidence should be admitted and thinking about its importance, the court would be entitled to say, "Assume for the moment that that evidence is true. Due to its probative value, importance and relevance, is it the sort of evidence that should be admitted so that the court can determine what it makes of it and the jury can decide what it wants to do with it?" It is a two-stage test. I hope that has helped the noble Lord.

Lord Thomas of Gresford: I am grateful to the Minister for such careful consideration of the amendments. We are not satisfied with the clause. I have the quoted the dicta of the noble and learned Lord, Lord Cooke, in my favour so many times that I am always dismayed when I discover that he is on the other side of the argument. His argument that, if hearsay evidence is to be admitted, the rules must be a lot simpler should be heeded by the Government. They should read carefully what he said. For example, the subsection to which we take exception, subsection 1(d), would, as my noble friend Lord Carlile pointed out, mean that the statement was automatically to be admitted if, in a hearing, the court was satisfied that,

    "it would not be contrary to the interests of justice for it to be admissible".

The burden is very much upon the defendant to establish that it would be contrary to the interests of justice for it to be admissible.

Amendment No. 152, on the other hand, puts the matter more positively. The prosecution would be required to establish that the court was satisfied that it would be in the interests of justice for the statement to be admitted. That would be a more satisfactory way of dealing with hearsay evidence than the proposals in the Bill. First, it is obvious that the judge would take into account the factors set out in subsection (2). Secondly, they amount to a shopping list that will unquestionably prolong hearings as counsel runs down them. Finally, I note that a later amendment, Amendment No. 154, has

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been grouped with these amendments. I propose to address that amendment separately when we come to that particular clause.

Our discussion has been extremely useful in clarifying to me where the problems arise in the clause. I shall give further consideration to the problems with hearsay evidence. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150 to 152 not moved.]

On Question, Whether Clause 107 shall stand part of the Bill?

Lord Ackner: I shall take up no time in mounting a spirited defence of the decision of the Appellate Committee to which I was party, because the noble and learned Lord, Lord Cooke, gave me no notice that he was going to rely on any past peccadillo of mine and my brothers. That has saved your Lordships from unnecessarily listening to what might otherwise have been of academic interest.

I am, however, delighted at the way he addressed your Lordships, because he spelt out in greater detail than I would have been able to give the wisdom of adopting what the Lord Chief Justice and the judges of the Court of Appeal have said. Perhaps I may set that out in a little more detail. It is to be found in paragraph 22 on pages 6 and 7:

    "The need for the reform of the Rules of Evidence relating to hearsay is not in doubt".

So there is harmony on that. Secondly, they observed the way in which the drafting follows the recommendation of the Law Commission. One must not be hypnotised by the fact that the Law Commission has gone one way. They go on:

    "However, we question whether the complexity of the provisions is necessary. What has happened is that the complex common law rules are being replaced by complex statutory rules, some of which are a repetition of the common law rules".

Then the Lord Chief Justice, who is particularly expert in the civil field, says:

    "What happens now in civil proceedings is that a judge has a general discretion to determine how matters are to be proved. The judge has to exercise the discretion in the interests of justice. He is assisted in doing this, because the probative value of the evidence depends upon its nature and source. If it is not first-hand evidence, then it has the disadvantage that it has not been tested by cross-examination. Whether this matters depends on the circumstances".

Then, moving to the criminal field, he says:

    "If we have got to the stage where it is considered that it is safe to allow juries to hear hearsay evidence, then we must be accepting that they can be trusted to use that evidence in accordance with the directions of the judges".

The paragraph ends with that which my noble and learned friend Lord Cooke quoted:

    "Instead of the detailed and complex provisions which are contained in Chapter 2, what is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in the appropriate manner".

That is what I rely on for the justification that the clause should not stand part of the Bill.

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3.45 p.m.

Lord Hodgson of Astley Abbotts: My name appears in support of the proposal that Clause 107 shall not stand part of the Bill, so I rise to support the noble and learned Lord, Lord Ackner. First, I noted from my copy of The Times that today is his birthday and I wish him many happy returns.

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