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Lord Thomas of Gresford: I have to say that I am completely dissatisfied with the explanation of why the fear of financial loss should make it possible for the prosecution to read a statement in a criminal case where the liberty of the subject is involved. The kinds of circumstances referred to by the noble Baroness seem unlikely to occur at that level.
May I suggest that a pilot scheme covering fear of financial loss is also run in Ceredigion, in addition to those set up in North Wales and Gwent? We might receive some examples from that part of the world which would assist us more. I am afraid that only my noble friend Lord Carlile will understand the significance of that remark.
The noble Lord said: I beg to move Amendment No. 155 and to speak at the same time to the Question whether Clause 114 shall stand part of the Bill. Clause 114 takes us into a still more delicate set of issues, this time concerning the admissibility of multiple hearsay. I shall speak both to the amendment and to the Question whether the clause shall stand part because, as noble Lords will appreciate, the issues are closely intertwined. Although this is an important and serious matter, I shall speak briefly because many of the concerns and issues were raised in our debate on Clause 107 stand part, which concerned single hearsay.
As I have said before, we agree with the recommendations of the General Council of the Bar and the Criminal Bar Association and we welcome attempts to codify the complex rules of hearsay. However, I am afraid that we cannot support the Government's proposals in Clause 114 for the inclusion of multiple hearsay in this Bill.
Multiple hearsay concerns not only one statement not made in oral evidence but a series of statements. Therefore all the reservations and concerns that we have in regard to the inclusion of hearsay, which were raised in the debate on Clause 107 stand part, are multiplied and reinforced in regard to the provisions of Clause 114.
Amendment No. 155 seeks to limit potentially flawed evidence which we believe would cause inconsistencies and unfairness in a trial if the clause were allowed to pass unamended. I shall not repeat the detail of my arguments on Clause 107 stand part. I shall confine myself to pointing out that any hearsay may be inaccurate or mistaken; it is easily manufactured; it is difficult to challenge; it is difficult for a jury to test; and it cannot be tested on oath as the maker of the statement will not be standing before the court to give direct oral evidence. If we are concerned about hearsay, how much more should we be concerned about multiple hearsay?
The Joint Committee on Human Rights raised the pointit was also raised by Justicethat the Bill does not expressly prevent a person being convicted on the basis of hearsay or multiple hearsay alone. It concluded that there was a significant risk that,
The Criminal Bar Association has highlighted the case of Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea. It states that cases such as Unterpertinger v Austria, Kostovski v Netherlands and Saidi v France illustrate the reluctance of the Strasbourg
If we have to accept the introduction of the use of potentially unreliable evidence into our court system, we firmly believe that it should be first-hand hearsay only. It should not be extended to what could come down to, in my non-legal words, a series of Chinese whispers"He overheard a conversation in which he heard A say that he had heard B boasting about killing C". Could or should such statements have a place in our judicial system? I beg to move.
Lord Renton: As we have voted against Clause 107, Clause 114 becomes largely irrelevant. But I am sure that my noble friend is justified in moving his amendment because, alas, there is a reference in subsection (1) of the clause to Clauses 109 to 113, which we have left in the Bill.
However, now that Clause 107 has been ruled out of the Bill, I would expect the Government to consider whether Clause 114 makes any sense at all. If they decide that it should be left in the Bill for some purely technical reasonwhich I would find surprisingperhaps the amendment moved by my noble friend is fully justified.
Baroness Scotland of Asthal: I will therefore confine my remarks to Amendment No. 155. I should make clear that the Government very much share the concern of noble Lords about the genuine risks involved with multiple hearsay and the danger that unreliable or manufactured evidence might go in if there are not adequate safeguards in the Bill. Amendment No. 155 would prevent multiple hearsay from ever being used in our criminal courts. While I appreciate the concerns that have prompted the amendment, we believe that it would set the hearsay clock back too far and that it is over-prescriptive in preventing the courts considering reliable evidence.
Currently, multiple hearsay is prima facie admissible in business documents in England and Wales under Section 24(2) of the Criminal Justice Act 1988, provided that each person in the chain has received the information in the course of a trade, business or profession. Many of these documents, as noble Lords will know well, will have passed through the hands of several people. However, as each business document is inherently reliable, there is no substantially increased risk of error or fabrication at each stage. Therefore, it is right that such evidence should be admissible.
Clause 114 is an important safeguard in addressing dangers posed by multiple hearsay. It seeks to establish the general principle, subject to limited exceptions, that if a witness is unavailable to testify, their written statement cannot be used to prove other admissible hearsay evidence. This would prevent the admission of hearsay within hearsay unless the earlier statement can be proved by an inherently more reliable form of hearsay statement such as a business document or where the multiple hearsay is of such exceptional probative value that the court is able to exercise its discretion to admit a series of statements in the interests of justice under Clause 107(1)(d), as it then was. I am responding to the comments in this way because while I appreciate the provision has gone, it is important to understand how we saw this fitting in.
We recognise that this is a complex area where some common law jurisdictions have taken a more liberal approach to the automatic admission of multiple hearsay than is proposed in the Bill. The formulation of the rule in Clause 114 follows the approach taken by the Law Commission in its draft Bill. We believe that such a safeguard against multiple hearsay is necessary. It serves to differentiate the exceptional circumstances in which it may be appropriate to admit multiple hearsay from those where the risks would be too great. I hope that with that explanation, the noble Lord, Lord Hodgson, will feel content to withdraw his amendment.
Lord Hodgson of Astley Abbotts: I thank my noble friend Lord Renton for his support for these amendments and the noble Baroness for her explanation of the Government's thinking. She remains remarkably lucid, even on an hour and a half's sleep.
The core of our concern is that we are moving from reliable hearsay, which we can get our minds around, to reliable multiple hearsay. That having been said, the Minister made two very valid points. She referred to the issue of routine business documents being excluded and the safeguards that have been built in to the Bill. We would like a chance to read what she said and consider it further. In the meantime, I beg leave to withdraw the amendment.
Lord Renton: It seems to me abundantly plain from the discussion we have just had and the decision to strike out Clause 107 from the Bill that the Government really should consider not only the drafting of this clause, which has two references to Clause 107, but its content, which is dependent upon Clause 107 to a great extent. It is irrelevant and unnecessary and, I suggest, undesirable. It could lead