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Lord Kingsland: My Lords, for once the noble Baroness's observations about bad character have not taken me by surprise.

On Question, amendment agreed to.

3.45 p.m.

Clause 93 [Multiple hearsay]:

Baroness Scotland of Asthal moved Amendment No. 65:

"Additional requirement for admissibility of multiple hearsay
(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—
(a) either of the statements is admissible under section 89, 91 or 92,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
(2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.".

The noble Baroness said: My Lords, we have debated the subject of multiple hearsay both in Committee and on Report, and a certain amount of concern has been raised about Clause 93, which regulates the admission of multiple hearsay. There was particular concern that the clause was not sufficiently clear about the circumstances in which multiple hearsay evidence should be admitted. On Report, I informed the House of our intention to bring an amended clause before the House at Third Reading, and that is what I now do.

We all agree that there are dangers in admitting multiple hearsay evidence generally and that it should be admitted only in certain limited circumstances. We are not advocating that rumour and so-called tittle-tattle should be admitted as evidence. However, we think it clear, as was acknowledged on Report by the noble Lord, Lord Hodgson, that there are circumstances where multiple hearsay should be admitted. We spoke on Report, for example, about how it is important that multiple hearsay contained in business documents should continue to be admissible, as is the case under the current law.

The new clause proposed in the amendment seeks to set out clearly the circumstances where multiple hearsay can be admitted. Its subsection (1)(a) provides for multiple hearsay to be admissible where one of the statements is admissible under Clauses 89, 91 or 92. That is where it includes a business statement and is therefore inherently reliable, and where it includes a previous statement of a witness who is giving evidence in court and can therefore be questioned about the statement. Subsection (1)(b) covers evidence where all

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parties agree that the evidence should be given. In those circumstances, there is of course no reason to think that the evidence should not properly be given.

However, there may also be cases not falling within those narrow circumstances where multiple hearsay should be admitted. In those circumstances where it is important for the evidence to be given, the hearsay rules should not preclude its admission. We therefore have retained a narrow discretion to admit multiple hearsay evidence that falls without proposed new subsection (1)(a) and (b) but should nevertheless be admissible.

Of course, such circumstances will be exceptional, and the test in proposed new subsection (1)(c) is therefore worded to reflect that a substantial threshold should be met before such evidence can be given. The test is worded so that such evidence can be given where the court is satisfied that the value of the evidence in question, taking into account how reliable the statement appears to be, is so high that the interests of justice require the later statement to be admissible.

It may assist the House if I outline an example of a situation where it may be appropriate to use the discretion to admit multiple hearsay evidence. Let us take the case involving rape of an 80 year-old lady who suffers a serious stroke shortly afterwards and cannot tell the police what has happened to her. However, let us say that before losing consciousness she told the doctor what happened to her, and that she could not identify her attacker. The doctor immediately writes that all down, but is working abroad by the time of the trial.

One key issue in the case is identity, on which the 80 year-old's evidence can shed no light. However, the prosecution has good independent evidence to establish identity, but no medical evidence showing injuries to establish that she was attacked. Her statement is, therefore, vital to establish another key issue—that she was raped. But it is multiple hearsay, being an out-of-court statement by the doctor of what she said. In such circumstances, it would be quite wrong for the rules of evidence to bar the courts from admitting that evidence.

That is not a far-fetched scenario, as the courts in New Zealand dealt with a similar situation involving an out-of-court statement in the case of Hovell. It highlights the need for some discretion to cover exceptional cases. One of the central criticisms of the hearsay rule under the current law is that it is inflexible and can in some circumstances prevent the court admitting evidence when it is clearly in the interests of justice to do so. The discretion will provide a degree of flexibility within the hearsay rules that is much needed and much called for.

In drawing up the revised clause, we have listened to concerns in the House on the subject that multiple hearsay should not generally be admissible. The revised clause will ensure that that is not the case. The proposed new clause strikes the right balance between admitting evidence where it is appropriate in exceptional cases to be given, and ensuring sufficient safeguards against the admission of unreliable

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evidence. The noble Lord, Lord Thomas of Gresford, and I have debated a number of other examples, but I hope that we will not have to entertain noble Lords with some of them from that discourse today. I have given one example to delight him.

In the light of my comments, I hope that the revised clause will be accepted by the House. I beg to move.

Baroness Anelay of St Johns: My Lords, it might be helpful if I make it clear that we support the amendment. The issue of multiple hearsay has a long history of debate in both Houses. When the Bill left another place, we made it clear that we thought that the clause had no place in the Bill. We have changed our position on the basis of very constructive work carried out over the past few weeks between those on the Government and Opposition Benches. I thank not only the Minister but the noble Lord, Lord Thomas of Gresford, and his colleagues for the work that they have put in on the matter.

It is now the case that we accept that although the drafting could be improved—when could it not because, for example, it is difficult to know what the value of the evidence might be—we shall not cavil at that. We accept the Minister's point that this is a narrow discretion in subsection (1)(c). We are trying to narrow down the circumstances to exceptional circumstances in which the provision should come into operation, when paragraphs (a) and (b) have not been operative. On this occasion, we are content with the amendment.

Lord Thomas of Gresford: My Lords, the Minister delighted me with the example that she gave in circumstances where I had challenged her to try to find any situation in which multiple hearsay could be used. It was a fairly good example, if I may respectfully say so. I am equally delighted with the way in which the clause has been changed. It has been the subject of considerable anguish on this side of the House, and in the many discussions among all three of us we made a great deal of progress. In the narrow discretion that is now given to admit hearsay evidence, we believe that we have arrived at the correct solution.

Lord Renton: My Lords, I somewhat reluctantly support the clause, but I am bound to point out that in years to come much will depend on the interpretation that the courts give to it. It may be valuable, but I suggest that the Government keep a close watch on how it is used in practice.

I must confess that when I was in practice and sitting judicially from time to time, hearsay evidence was ruled out completely. However, when a few years ago it was made admissible in certain circumstances, I accepted that. But now when we are dealing with multiple hearsay—hearsay upon hearsay—we must be extremely careful. Although I have looked at the drafting of the new clause and hope that it will work in a sensible way, I believe that it could be abused. I hope that the Government will keep a careful watch on the way that it works.

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Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Thomas of Gresford, for the extensive discussions we had on this issue. They are right in saying that we were all seeking to cure a mischief. We all identified that mischief and we wanted to find something which would be fit for purpose and could be used in the interests of justice on a restricted basis.

I can reassure the noble Lord, Lord Renton, that the caution he asks us to exercise was evidenced throughout our discourse and we three believe that we have alighted upon a provision with which we are content, in as much as it will do justice.

On Question, amendment agreed to.

Clause 103 [Evidence at retrial]:

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