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Lord Ackner: I had hoped that my anniversary would pass without being noted because I am bound to say that as the years roll by I find it increasingly difficult to measure up to my sobriquet, "Number One Trouble Maker", but I do try.

The ground has been very fully covered on this subject. In order to make my anniversary more pleasurable to recollect, I do not think I need do more than to invite your Lordships to enter the Not-Content Lobby in order to get rid of this clause.

18 Sept 2003 : Column 1124

3.58 p.m.

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

Their Lordships divided: Contents, 66; Not-Contents, 70.

Division No. 1


Acton, L.
Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Irvine of Lairg, L.
Jordan, L.
Judd, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Mishcon, L.
Pitkeathley, B.
Rooker, L.
Scotland of Asthal, B.
Simon, V.
Stallard, L.
Stone of Blackheath, L.
Strabolgi, L.
Temple-Morris, L.
Turner of Camden, B.
Uddin, B.
Weatherill, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord President of the Council)
Woolmer of Leeds, L.


Ackner, L.
Alderdice, L.
Ampthill, L.
Anelay of St Johns, B.
Attlee, E.
Biffen, L.
Blatch, B.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Colwyn, L.
Cooke of Thorndon, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crathorne, L.
Denham, L.
Elton, L.
Fowler, L.
Freeman, L.
Guildford, Bp.
Hanham, B.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Hylton, L.
Jenkin of Roding, L.
Kingsland, L.
Linklater of Butterstone, B.
Lyell, L.
McCarthy, L.
Mackay of Clashfern, L.
Maddock, B.
Marlesford, L.
Mayhew of Twysden, L.
Molyneaux of Killead, L.
Naseby, L.
Newby, L.
Nicholson of Winterbourne, B.
Noakes, B.
O'Cathain, B.
Onslow, E.
Park of Monmouth, B.
Peel, E.
Phillips of Sudbury, L.
Plumb, L.
Portsmouth, Bp.
Rawlings, B.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Roll of Ipsden, L.
Roper, L.
Scott of Needham Market, B.
Seccombe, B.
Skelmersdale, L.
Stern, B. [Teller]
Stewartby, L.
Strathclyde, L.
Tenby, V.
Thomas of Gresford, L.
Tordoff, L.
Walker of Worcester, L.
Walmsley, B.
Wedderburn of Charlton, L.
Wilcox, B.
Worcester, Bp.

Resolved in the negative, and Clause 107 disagreed to accordingly.

18 Sept 2003 : Column 1125

4.9 p.m.

Clause 108 [Statements and matters stated]:

Lord Thomas of Gresford moved Amendment No. 153:

    Page 69, line 9, at end insert—

"( ) A statement of opinion is only admissible if the opinion would have been admissible as oral evidence in the proceedings."

The noble Lord said: The problem with Clause 108 appears in subsection (2) where it delineates a statement as a,

    "representation of fact or opinion made by a person by whatever means".

It says not "expert opinion" but "opinion". Effectively, anyone's hearsay opinion is being permitted. For example, hearsay opinion might be admissible under these provisions in an identification, such as, "I didn't see the man who robbed me but Mrs A told me she thought it was X", or "Mrs A said that in her opinion, knowing X, only X could have committed this robbery".

Such opinions clearly would not be admissible as oral evidence in the proceedings because opinion evidence is not generally admissible unless it is given by an expert on the basis of his or her professional expertise. The purpose of Amendment No. 153, therefore, is to make it absolutely clear that a statement of opinion can be admissible only under the hearsay provisions if the opinion would have been admissible as oral evidence in the proceedings. I think that its purport is extremely clear. I beg to move.

Baroness Scotland of Asthal: Although the hearsay rule and the rule in relation to evidence of opinion originate from the same principle that in general witnesses may only give evidence of facts of which they have personal knowledge, it is important to remember that the two rules are distinct, even though the same piece of evidence might require both rules to be examined.

Neither Chapter 2 nor the rest of the Bill for that matter is intended to affect the common law rule in criminal trials which, subject to limited exceptions, prevents witnesses expressing their opinions about what happened or may have happened in the case. Under the rule, the opinions of witnesses are inadmissible, unless they fall within an exception, such as where the court needs expert help in deciding an issue, or where it is genuinely impossible for an ordinary witness to tell his story in any other way.

18 Sept 2003 : Column 1126

Nothing in this Bill will alter that position. If an out-of-court statement contains opinion evidence, that part of the statement will not be admissible unless it falls within one of the exceptions to the general rule against opinion evidence. To ensure that there are no unintended consequences, Clause 107(3) explicitly states that nothing in this chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. So we would respectfully suggest to the noble Lord, Lord Thomas of Gresford, that no clarification would seem necessary.

It is right to say that in another place concern was expressed as to why it was necessary to refer to "opinion" within Clause 108(2) if nothing in the Bill was intended to alter the common law position on evidence. I think that is the import of much of what the noble Lord, Lord Thomas of Gresford, said today.

I hope that I have explained that there are occasions when common law permits opinion evidence to be admissible. We need to ensure that admissible opinion evidence is not excluded from the hearsay provisions of Chapter 2, bearing in mind that that is somewhat difficult because we have had a clause stand part debate on Clause 107.

Lord Thomas of Gresford: Of course, Clause 107 no longer stands part of the Bill. I am assured by the noble Baroness that opinion evidence is not to be treated any differently under the Bill than it is in common law. If something like Clause 107 were reinstated, it might play a further part in our considerations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

On Question, Whether Clause 108 shall stand part of the Bill?

Lord Renton: I notice that the noble and learned Lord, Lord Ackner, has put his name down to omit this clause. I feel bound if I may to move that. It is extraordinary. Imagine criminal proceedings in which a cartoon—even one in The Times—could be quoted as a way of exposing truth. So many cartoons are a diversion from the truth and the idea that they could be admitted in a criminal case as a sketch—because that is what cartoons are—could lead to the most extraordinary results. I hope that the Government will reconsider this clause altogether. It is utter nonsense.

Baroness Scotland of Asthal: I hear what the noble Lord, Lord Renton, says. We think that Clause 108 is sound. It defines the type of statements that will be covered by the new scheme. According to subsection (3), the rule will apply only if it is the purpose of the person making the statement to cause someone to believe the matter stated is true or to act on the basis that it is true. The common law rule was much wider than this and excluded statements or conduct from which a relevant fact could be inferred, although the maker did not intend to communicate that fact. The

18 Sept 2003 : Column 1127

rule has caused much confusion and injustice in borderline cases, known to lawyers as implied assertions. We think that the clause is well founded.

On the issue raised by the noble Lord, Lord Renton, we do not think that this matter will engage the court in any difficulty in relation to criminal cases.

Clause 108 agreed to.

Clause 109 [Cases where a witness is unavailable]:

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