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Lord Ackner: My Lords, I must ask the noble Baroness to read it out. The Explanatory Notes, which have been helpfully provided to me, read:

"Subsections (1)—(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it".

If the noble Baroness has before her, as I believe that she has, the terms of what was struck out—Clause 107—will she read it out? The beginning of the clause indicates that what follows is due to the authority given by that clause.

7 p.m.

Baroness Scotland of Asthal: My Lords, I did read out the beginning. I am happy to read it out again, for the assistance of noble Lords. Under the heading "Admissibility of hearsay evidence", Clause 107 read:

"In criminal proceedings a statement not made in oral evidence in the proceedings is—

it read "admissible"—

"as evidence of any matter stated if, but only if"

and then set out paragraphs (a), (b), (c) and (d), which provided the basis on which it would be dealt with. Subsection (2) went on to say:

"In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others . . . )".

At paragraphs (a) to (i), the Bill sets out those factors.

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Clauses 98 and 99 can stand alone. As your Lordships will know, Clause 98 was entitled, "Evidence to correct a false impression"; Clause 99 was entitled, "Attack on another person's character". That is the way it is dealt with. I hope that all noble Lords present follow why there is a distinction to be drawn between those issues with which we have already dealt, and the parts with which we have not.

With your Lordships' leave, I shall reply to the comments made by the noble Lord, Lord Thomas of Gresford, in relation to Clause 99. The clause sets out the categories under which out-of-court statements will be automatically admissible because the witness is unavailable to give evidence. The noble and learned Lord, Lord Woolf—as mentioned by the noble and learned Lord, Lord Ackner, on previous occasions—has concerns with the approach that we have adopted. He has suggested that something simpler is needed, akin to the civil rules of evidence. The Government are always willing to listen to suggestions for improving the clarity and effectiveness of legislation. We also agree that the courts should have greater discretion to admit hearsay. However, a complete relaxation of the hearsay rule, as in civil proceedings, would be appropriate for criminal cases.

Therefore, if Parliament were to decide not to codify those categories, the courts, in their appellate capacity, would be bound to develop rules on these issues. Practitioners would have to become familiar with relevant and possibly complicated case law. That approach also assumes that there would be little conflict with the authorities in such cases. It is an assumption which we do not believe we could safely make, given the problematic way in which that area of law has evolved so far. Thus, there are arguments against the uncertainties of a wholly discretionary approach and in favour of a code which seeks to build on recognised categories in current law, but stating them in a comprehensive and coherent fashion, accessible to all and capable of straightforward application, seems to be one of the measures for which a number of people have been crying out for a long time.

Clause 99 also makes provision for the use in evidence of an out-of-court statement, with leave, where a witness is frightened. Amendments Nos. 192A and 192B seek to remove part of the definition of "fear" and the example of financial loss. The wording of the clause is in terms used by the Law Commission in their draft Bill and reflects its conclusion that the courts should have a wide discretion to admit statements where witnesses are frightened to give evidence.

In Committee, the noble Lord, Lord Carlisle, queried whether use of the term "widely construed" has statutory precedence. A search of legislation has not identified anything similar, but it would still be desirable to retain it. Without it, witnesses may not receive the protection which we would want to provide. For example, an elderly or vulnerable witness, who has a brick thrown through the window because he or she is co-operating with the police, may not face a threat to their life. But the court should be able to look at "fear" through the eyes of the witness and should have a wide discretion to admit an out-of-court statement where it is in the interests of

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justice to do so. Perhaps I may make it clear; this is not about losing a day's pay to go to court, as alluded to by the noble Lord, Lord Thomas of Gresford. It is about genuine fear.

Let us take a case, for example, involving the robbery of a local corner shop where the shop owners are threatened by a local gang. If they give evidence in court, the gang will ensure that their customers never buy from them again. Their entire livelihood and all that they have worked for is at stake. The effect of the amendments would mean that the courts would be able to hold that financial loss was not what was intended to be covered by Parliament. Their statements would be inadmissible even though it may be in the interests of justice for them to go in. That is highly undesirable: the reluctance of witnesses to give evidence through fear is a serious problem for the criminal justice system, which I know that the noble Lord acknowledges. The courts should not be prevented from admitting a statement from a frightened witness where it is in the interests of justice just because it is unclear whether it is the right type of fear.

With those comments, I hope that the noble and learned Lord will withdraw his amendment and that noble Lords will feel content that Clauses 98 and 99 should stand part of the Bill.

Lord Ackner: My Lords, in view of the apparent absence of any concurrence from either Opposition, I shall not seek to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 99 [Cases where a witness is unavailable]:

Lord Thomas of Gresford had given notice of his intention to move Amendments Nos. 192A and 192B:

Page 63, line 18, leave out from ""fear"" to "includes" in line 19.

Page 63, line 19, leave out "or of financial loss"

The noble Lord said: My Lords, I shall not press Amendments Nos. 192A and 192B in the light of the explanation given by the Minister and the narrowing of the categories in which "fear" is to be construed.

[Amendments Nos. 192A and 192B not moved.]

[Amendment No. 193 not moved.]

Clause 100 [Business and other documents]:

Baroness Scotland of Asthal moved Amendment No. 194:

Page 64, line 20, leave out from "not" to "or" in line 21 and insert "obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003"

The noble Baroness said: My Lords, these are minor consequential amendments to take account of the repeal of Section 3 of the Criminal Justice (International Co-operation) Act. Amendment No. 194 updates the reference to Section 3 of the 1990 Act to refer to Section 7 of the Crime (International Co-operation) Act 2003. Noble Lords will know that that Bill has now received Royal Assent. Amendment No. 196 deletes the consequential amendment to Section 3 of the 1990 Act contained in Clause 119(2) of the Criminal Justice Bill.

The remaining amendments in the group are mainly technical consequential amendments to take account of the way the Crime (International Co-operation) Act

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and this Bill interrelate. Amendments Nos. 243 and 245 make minor corrections to errors in the repeals Schedule. I beg to move.

On Question, amendment agreed to.

Clause 104 [Multiple hearsay]:

Lord Hodgson of Astley Abbotts moved Amendment No. 195:

Leave out Clause 104.

The noble Lord said: My Lords, Amendment No. 195 seeks to leave out Clause 104, which concerns, and is entitled, "Multiple hearsay". Noble Lords will remember that in Committee, an amendment moved by the noble and learned Lord, Lord Ackner, the then Clause 107, entitled, "Admissibility of hearsay evidence", was removed from the Bill. That vote left the present Clause 104, entitled, "Multiple hearsay" in an uncertain position, which appears not to fit with the rest of the Bill.

In Committee, the dangers of hearsay were clearly laid out. We heard how a single hearsay may be inaccurate, misguided or even fabricated, how it is difficult to challenge and how it cannot be tested on oath; essentially, that hearsay is a highly flawed source of evidence. Multiple hearsay takes that one step further. All the hazards exist, but are accentuated.

The Government's proposals to relax hearsay laws or what, in my non-legal terms, amounts to second-hand information, caused widespread concern among many Members of the Committee. Easing the admissibility of third, fourth or fifth-hand information, which is what multiple hearsay truly represents, surely exacerbates that concern further. For all those reasons, the relaxation of the multiple hearsay admissibility of rules is undesirable. As we heard in Committee, under present regulations multiple hearsay is not admissible as evidence in criminal courts except in exceptional circumstances. The noble Baroness discussed in Committee (at col. 1132 of the Official Report on 18th September) the most common example of its use in the criminal court, when she said that Section 24(2) of the Criminal Justice Act 1988 already allows the admissibility of multiple hearsay in business documents which have passed through the hands of several people. We felt that her dismissal of our argument against multiple hearsay on the grounds that this would also lead to the loss of the provision before us bordered on the illogical, bearing in mind that Section 24(2) is a unique exception—I should say "an unique" exception—to the rule and is not in any case one that we wish to displace.

It is not this small and even insignificant clause with which we have issue, rather it is the approach of the Bill to make the criminal law in these circumstances similar to civil law, where all evidence is primarily admissible and then sifted for relevance. That is what we wish to displace.

Many noble Lords will have received the briefing from Liberty, which emphasised:

"The criminal law is not the same as the civil law because there is not the same sanction. The convicted defendant in a criminal trial faces loss of liberty and there is a strong likelihood of miscarriages of justice occurring if hearsay is relaxed".

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In our view, the presumption should be not towards accepting potentially unreliable evidence; the ensuing pitfalls have been spelt out repeatedly. Multiple hearsay should be admissible in criminal courts only under very limited and regulated circumstances and, as a natural consequence of "admissibility of hearsay evidence" at Clause 107 being struck from the Bill. Clause 104 in the present Bill should suffer the same fate.

Meanwhile, the world has been moving on. I thank the noble Baroness for the meeting she had yesterday evening with my noble friend Lady Anelay and the noble Lord, Lord Thomas of Gresford, to discuss the revised government proposals for multiple hearsay. I apologise to the noble Baroness for not being able to be present myself.

The Government have now put forward a proposal to redraft Clause 104, and part of that redraft appears to be acceptable. We accept that new subsections (1)(a) and (b) codify the existing practice regarding the admissibility of multiple hearsay. We also accept that the Government have made a constructive attempt to draft the third part of the new clause, subsection (1)(c), to cover those exceptional circumstances in which a court may decide to admit multiple hearsay in other cases.

However, the problem is that this first attempt on the part of the Government to redraft the exceptional circumstances case is too vague and needs to be more narrowly drawn to be acceptable. I understand that the Government have agreed to look again at the redraft of Clause 104 and that, as a consequence, agreement may be achieved on this matter.

I invite the Minister to set out the Government's case in her response and confirm that the Government are prepared to continue discussions about the redrafting of Clause 104, along with their revised proposals, if any, for single hearsay—old Clause 107. If the noble Baroness is able to satisfy us on those two points, I can signal now that we shall not seek to divide the House on Amendment No. 195. I beg to move.

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