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Baroness Anelay of St Johns moved Amendment No. 187:
- Leave out Clause 93.
On Question, amendment agreed to.
Clause 94 [Court's duty to give reasons for rulings]:
Baroness Anelay of St Johns moved Amendment No. 187A:
- Leave out Clause 94.
On Question, amendment agreed to.
Baroness Anelay of St Johns moved Amendment No. 187B:
- Leave out Clause 95.
On Question, amendment agreed to.
Clause 96 [Interpretation of Chapter 1]:
[Amendment No. 187C had been re-tabled as Amendment No. 191ZA.]
Amendments Nos. 188 to 191 not moved.]
Baroness Anelay of St Johns moved Amendment No. 191ZA:
- Leave out Clause 96.
On Question, amendment agreed to.
Baroness Anelay of St Johns moved Amendment No. 191A:
- Leave out Clause 97.
On Question, amendment agreed to.
Clause 98 [Statements and matters stated]:
Lord Ackner moved Amendment No. 192:
- Leave out Clause 98.
The noble and learned Lord said: My Lords, this is rather a strange situation because the main provision was deleted on the last occasion. We received—and I have lost it among the myriad papers—a statement from the office pointing out the oddity that a main clause had been deleted and subsequent clauses depending on the main clause had remained in the Bill. That was not the only example. There was a clear lacuna that required clearing up. To remain consistent with what this House decided on the last occasion—to delete the main provision saying that hearsay should be allowed—I accordingly move to delete the dependent ones. To remind your Lordships about how
we came to remove the main one, I referred again to the paper by the noble and learned Lord, Lord Woolf, which is deposited in the Library and which bore the support of all the judges in the Court of Appeal criminal division. Paragraph 23 on page 7 states:
- "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".
- "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 judge. 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 an appropriate manner".
Lord Thomas of Gresford: My Lords, this amendment is grouped with Amendments Nos. 192A and 192B in my name. The purpose of my amendments to Clause 99 is to deal with the definition of fear. The conditions set out in subsection (2) that would permit evidence to be given in a statement as opposed to orally include the condition,
- "that through fear the relevant person does not give . . . oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence".
My amendments attack the definition of fear in subsection (3), which states that,
- "'fear' is to be widely construed".
- "is to be widely construed and (for example)"
- " 'fear' includes fear of the death or injury of another person".
My second objection is to the words "or of financial loss". Fear, widely construed, of financial loss could mean that a witness refuses to come to the court because, he says, he will lose a day's pay. It is as simple as that. What sort of financial loss do the Government have in mind, if it is not the loss to the witness of some financial gain that they might otherwise have received? I await the explanation.
Baroness Scotland of Asthal: My Lords, the debate covers two clauses: Clause 98, which defines the type of statement that will be covered by the scheme, and Clause 99, which makes provision for a statement to go in, if the witness is unavailable to give evidence. Noble Lords will know that we spent considerable time on those clauses in Committee.
It is important that the new scheme should be clear, not just about the circumstances in which an out-of-court statement will be admissible, but about the circumstances in which a statement would be considered hearsay. Clause 98 provides that clarity and limits the hearsay rule to circumstances in which the dangers associated with hearsay evidence arise—for example, circumstances in which there is a danger that a statement may be deliberately misleading. Therefore, under subsection (3), the hearsay rule would apply only if it were the purpose of the person making the statement to cause someone to believe that the matter stated was true or to act on the basis that it was true.
Clause 98 will overturn the ruling of the Appellate Committee of your Lordships' House in the case of Kearley in 1992, as the noble and learned Lord, Lord Ackner, indicated. Many of your Lordships will be familiar with the case in question. Evidence of 10 or so requests for drugs made at the defendant's house by callers on the telephone and in person was held, by a narrow majority, to be inadmissible hearsay, when tendered to prove that he was dealing in drugs. Such evidence—asking for "K" and requesting drugs—was said to have contained what is known to lawyers as "implied assertions", adduced to show that "K" was a drug dealer.
I have no doubt that it was an extremely difficult case, in which the committee was concerned to ensure fairness to the accused. However, the decision has caused much confusion and some injustice in cases involving implied assertions because, as the noble and learned Lord, Lord Browne-Wilkinson, pointed out, in dissenting from the ruling,
- "Any action involving human activity necessarily implies that the human being had reasons and beliefs on which his action was based".
We recognise that it is an immensely difficult area of law, but I say, with the greatest respect, that it is illogical to exclude all implied assertions during a criminal trial, particularly those in which the risk of fabrication is low. Additionally, it is difficult to distinguish an implied assertion from direct evidence. In Scotland, as in many other common law jurisdictions, such statements have never been excluded under the rules of evidence. We are not aware that any problems have arisen as a result.
I turn now to Clause 99, spoken to by the noble Lord, Lord Thomas of Gresford.
Lord Ackner: My Lords, before the noble Baroness moves on, will she explain how the clauses, which were dependent on the clause that was struck out, can stand on their own? They were all meant to be dependent on the general proposition that the House removed.
I remember clearly that the noble and learned Lord, Lord Cooke of Thorndon, having spoken about the case to which the noble Baroness referred, was one of those who voted against the main clause permitting the hearsay. I do not have the old, unamended Bill before me, so can the noble Baroness remind us how the clause read?
Baroness Scotland of Asthal: My Lords, I regret to say that I do not have the old clause with me either. I have the new version of the Bill. Regrettably, I cannot assist the noble and learned Lord. I could try from memory, but I am terrified that I might fall into error. I know that, given the noble and learned Lord's usual acuity, that is an error that I dare not commit.
Lord Ackner: My Lords, in those circumstances, will the noble Baroness agree to an adjournment, so that we can see what the position is? The House ought to see the words that it deleted. They represented the entitlement, so to speak, for the clauses to follow.
I think that something is being hurriedly provided.
Baroness Scotland of Asthal: My Lords, I would not suggest that it is necessary to adjourn. The clauses are not dependent on the removal of the other, over-arching clause. They stand on their own, and that is why we can bring them back. I see the noble Baroness, Lady Anelay of St Johns, nodding vigorously in support of that assertion, so I know that I am on fairly sound ground.
I now have the Bill. Chapter 2 relates to hearsay evidence. The bit that we deleted was Clause 107, headed "Admissibility of hearsay evidence". It read:
- "In criminal proceedings a statement not made in oral evidence in the proceedings is"—
- "as evidence of any matter stated if, but only if".
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