Criminal Justice Bill [H.L.] (Hansard, 17 November 1987)
HL Deb 17 November 1987 vol 490 cc137-44

6.55 p.m.

Consideration of amendments on Report resumed on Clause 21.

Lord Hutchinson of Lullington moved Amendment No. 16:

Page 15, line 9, at end insert ("if—

  1. (i) the requirements of one of the paragraphs of subsection 1(A) below are satisfied; or
  2. (ii) the requirements of subsection (1B) below are satisfied.
(1A) The requirements mentioned in subsection (1)(i) above are—
  1. (a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;
  2. (b) that—
    1. (i) the person who made the statement is outside the United Kingdom; and
    2. (ii) it is not reasonably practicable to secure his attendance;
  3. (c) that the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement; or
  4. (d) that, all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.
(1B) The requirements mentioned in subsection (1)(ii) above are—
  1. (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and
  2. (b) that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings in which the statement is sought to be admitted or on behalf of such an accused person.").

The noble Lord said: My Lords, we have reached Part II of the Bill, and I shall speak also to Amendments Nos. 19 and 21. An amendment moved in Committee, to which I and the noble Lord, Lord Irvine, put our names, sought to remove Clause 21 from the Bill. At that stage, we urged that the clause was far too broadly drawn in relation to hearsay evidence. We were arguing that to mitigate the rule against hearsay was acceptable and sensible and that to permit documentary hearsay in fraud trials was clearly to be desired, but that to destroy the hearsay rule altogether was to damage irretrievably the fairness of the criminal trial and to undermine the principle or orality and the essential right of all parties in a criminal trial to test evidence by cross-examination.

The Minister defended the clause. But, at the end of the debate, in that co-operative spirit which we so much appreciate when, on rare occasions, we see it, he said that he would be willing to work towards a half-way house. The noble and learned Lord, Lord Roskill, also expressed himself willing to give his blessing to any half-way house solution that left his precious fraud documents intact.

The Minister has been as good as his word. I understand that he is willing to accept these amendments in the form in which they appear on the Marshalled List. They incorporate into Clause 21 the conditions and safeguards already to be found in Section 68(2) of the Police and Criminal Evidence Act. Those appear in Amendment No 16 at subsections (1A) and (1B). Your Lordships will see that the requirement necessary before hearsay evidence will be allowed in are,

  1. (a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;
  2. (b) that—
    1. (i) the person who made the statement is outside the United Kingdom; and
    2. (ii) it is not reasonably practicable to secure his attendance;
  3. (c) that the person who made the statement cannot reasonably be expected … to have any recollection of the matters, … or
  4. (d) that, all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.
Further, subsection (1B) requires, that the statement was made to a police officer … and that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings".

You Lordships will see that instead of the matter being at large, as it was in the original version of the Bill, this provision gives us the safeguards that we sought in Committee. We appreciate the efforts that the Minister has made to reach a sensible consensus on Clause 21. Amendments Nos. 19 and 21 affect Clause 22. That clause deals with business documents. Clause 24 deals with statements in documents that appear to have been prepared for purposes of a criminal trial; that is, documents such as depositions or notes in police officers' notebooks and the like, but not those appearing in Part III of the Bill—letters of request and experts' reports.

We were troubled in Committee that the judge's inclusionary discretion in relation to such documents was far too wide. Amendment No. 21 incorporates into this stage the safeguards in the Police and Criminal Evidence Act to which I have just referred. Once again, I understand that the Minister finds these amendments satisfactory. In all the circumstances, I have great pleasure in moving the amendment. I owe a debt of gratitude to the Minister for having co-operated as he has. I beg to move.

Lord Mishcon

My Lords, from these Benches we would also like to refer to the procedure which was adopted, so helpfully, by the noble Earl following upon our proceedings in Committee. He was good enough to write to all those who participated in the debate and was kind enough to suggest the very wording of this amendment. We are deeply grateful to him for having done so. That allowed us to put forward an amendment which has met with the agreement of the House.

The only observation I would make—obviously, we are all in favour of the amendment now—is that he might care between this stage and Third Reading to look at the wording of subsection (1B)(b) of Amendment No. 16. If your Lordships would kindly refer to that wording, you may find it is as abstruse as I, as a lawyer, have. I shall read it to the House: that the person who made it does not appear to give oral evidence because he is kept out of the way by means of the procurement of a person accused in the proceedings in which the statement is sought to be admitted or on behalf of such an accused person. I think that it will take a great deal of interpretation before one gets at the real meaning of that subsection although one knows its intention. Without wishing to waste any more time in regard to an amendment to which we all agree, I merely suggest that between now and Third Reading the Minister may wish to look at the wording to see if it can be simplified.

Lord Irvine of Lairg

My Lords, I spoke in Committee to the subject matter of Amendments Nos. 16 and 19 in support of the noble Lord, Lord Hutchinson. We are glad that the Minister has thought again on this subject. We would have preferred not to have Clause 21 in the Bill at all because we felt that other clauses broadened the rules of admissibility as much as was necessary. The adoption of these restrictions on the adducing of hearsay evidence makes Clause 21 a good deal better than it was.

In Committee I said that trials on paper must on the whole represent second-rate justice. Some of your Lordships were dismissive of that and suggested that the whole principle of orality had been demolished by irrefutable logic. We are glad that that somewhat advanced position has not found favour with the Government and that they have been persuaded to follow a middle way.

For ourselves we believe that after the Police and Criminal Evidence Act 1984 and after this Bill has passed into law, it will be right to leave undisturbed the question of hearsay in criminal cases for some considerable time in order to see how these far-reaching changes operate in practice. The general principle must be that hearsay evidence should only be admitted in criminal cases where really necessary.

As regards Amendment No. 19, we are equally glad to know that the Government have accepted that essentially the same restrictions should apply to statements prepared for criminal proceedings and investigations.

I add my own voice to that of my noble friend Lord Mishcon with reference to the expression of Clause 21(1B)(b) and the words: because he is kept out of the way by means of the procurement of a person accused in the proceedings". It is scarcely the most elegant form of language. Perhaps that mode of expression should be considered in the name of elegantia juris.

The Earl of Caithness: My Lords, when we debated this group of clauses in Committee there was a wide measure of agreement that the law governing the admissibility in evidence of documents which we described in shorthand as "business documents" was too strict. That had been the conclusion of the fraud trial committee under the chairmanship of the noble and learned Lord, Lord Roskill. Both he and the noble Lord, Lord Benson, made powerful speeches in that respect at the Committee stage. There, was therefore no disagreement about the need for Clause 22 as a means of allowing the courts to receive all the relevant documentation in cases such as the fraud cases with which the noble and learned Lord's Committee had been concerned.

There was however a view expressed by the noble Lord, Lord Hutchinson, and others that Clause 21 went too far in allowing the admissibility on identical criteria of other kinds of documents. Again in shorthand we described them as historic documents where their content was within the direct knowledge of their maker.

It was also argued that although it created a strong presumption against the admission of documents prepared for the purposes of criminal proceedings and investigations, Clause 24 was too tightly drawn.

I undertook to consider both of those points. As the noble Lord, Lord Hutchinson of Lullington, has said, there has since been some discussion between him and the Government and others of your Lordships. The result is that I am ready to accept the amendments which he has moved this evening with his customary eloquence.

Their effect would be considerably to tighten Clause 21 and by an indirect route Clause 24. To be admissible under Clause 21 an historic document would have to satisfy one of the conditions to which the noble Lord referred. For a court to have even the residual opportunity provided by Clause 24 to allow the admission of a witness statement in the interests of justice it would need to satisfy one of the same conditions.

There would therefore be three classes of documents; business documents, which would be readily admissible subject only to the discretion in Clause 23 to exclude them in the interests of justice; historic documents, which would be admissible only if they fulfil one of the new conditions; and witness statements, which would have to jump the same hurdle. Even then they would be admissible only when the court decided that they should be admitted exceptionally in the interests of justice.

I believe it would have been wrong to exclude altogether the murdered's wife's diary to which reference was made in our debates in Committee, or the statement made to the police by the witness who subsequently dies or is intimidated.

Amended as proposed by the noble Lord, the provisions will I think strike a sensible balance, on the one hand ensuring the admissibility of reliable documents in evidence, and on the other hand preserving the oral tradition of our system of trial.

That brings me to the point raised by the noble Lord, Lord Mishcon, and the noble Lord, Lord Irvine of Lairg. It is said that some modern parliamentary draftsmen are a little obscure. This is not the work of modern parliamentary draftsmen. As the noble Lords opposite will know better than the wording is drawn from the Criminal Justice Act 1925 and it has been on the statute book for some 62 years. Nevertheless, let me look at that particular point again.

Lord Mishcon

My Lords, with the leave of the House, the fact that something was drawn in a somewhat mysterious, ambiguous and devious way in 1925 ought to give us, a far better Parliament than the one which operated at that time, an opportunity of correcting the language.

On Question, amendment agreed to.

[Amendments Nos. 17 and 18 not moved.]

Clause 22 [Business etc. documents]:

Lord Hutchinson of Lullington moved Amendment No. 19: Page 15, line 14, leave out ("subsection (3)") and insert ("subsections (3) and (4)").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 20:

Page 15, line 14, after ("below") insert— ("(aa) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968;").

On Question, amendment agreed to.

Lord Hutchinson of Lullington moved Amendment No. 21:

Page 15, line 34, at end insert— ("(4) a statement prepared otherwise than under section 27, 28 or 29 below for the purposes—

  1. (a) of pending or contemplated criminal proceedings; or
  2. (b) of a criminal investigation,
shall not be admissible by virtue of subsection (1) above unless—
  1. (i) the requirements of one of the paragraphs of subsection (1A) of section 21 above are satisfied; or
  2. (ii) the requirements of subsection (1B) of that section are satisfied.")

On Question, amendment agreed to.

Clause 23 [Principles to be followed by court]:

Lord Hutchinson of Lullington moved Amendment No. 22:

Page 16, line 15, at end insert— ("( ) to the reasons why it is proposed that the person making the statement shall not give oral evidence;")

The noble Lord said: My Lords, I can move this amendment quite shortly. In Clause 23 we are dealing with matters to which the court must have regard in exercising its exclusionary discretion to allow evidence under Clauses 21 and 22.

Your Lordships will see that under Clause 23(2) the matters set out under (a) (b)(c) and (d) are those to which the court must have regard in exercising its discretion. They cover the nature and the source of the document with a view of the likelihood of it being authentic. Subsection (2)(b) says: to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (a) to the relevance of the evidence… (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence". and whether that would be unfair to the accused.

The amendment seeks to add to paragraphs (a) (b) (c) and (d) what is really the most important consideration of all in our submission, and that is the reason why it is proposed that the person making the statement shall not in fact give oral evidence. That ground surely should be included if these grounds are to be satisfied.

In Committee the Minister took the view that the matter was really covered by Clause 23(1) which begins: If, having regard to all the circumstances". It would be covered by those words and also by the words of Clause 23(2) (b): the extent to which the statement supplies evidence which would otherwise not be readily available.

The noble and learned Lord, Lord Roskill, supported this amendment in Committee and in his robust way used these words: If I were [sitting in a trial] … the first thing I should ask myself is: 'Why won't this chap come?".—[Official Report, 20:10/87; col. 98.] Those few words express much better than I can the point of the amendment. I am inclined to amend the noble and learned Lord's words and ask why will the Minister not agree? In those circumstances I beg to move.

The Earl of Caithness

My Lords, I have once again listened carefully to what the noble Lord has to say on this point, but I regret that I am still not convinced that the substance of his point is not already provided for. We have already discussed amendments to the earlier clauses which are intended to ensure that documents admissible under Clauses 21 and 24 will not replace oral evidence where that evidence is available. Secondly, I stand by what I said in Committee which is that under Clause 23(1), in deciding whether to exercise its discretion to exclude a document which is admissible under Clauses 21 or 22, the court is to have regard to all the circumstances. This can include factors such as those that the noble Lord referred to in moving his amendment.

Thirdly—and this was also mentioned in Committee—subsection (2)(b) refers to the extent to which the statement in the document provides evidence which otherwise would not be readily available. This expresses the same thought more generally. As I explained at the earlier stage, I believe this wording is more helpful than the noble Lord's amendment. If the court's attention were drawn specifically to, as it were, the excuses for a particular witness not attending court, there is, it seems to me, a risk that the argument will focus on that aspect even where, as is the case with many routine business documents, it is scarcely reasonable to expect the person who made them to come to court.

I believe that the three safeguards that are now in the Bill are quite sufficient and I remain persuaded not to accept the arguments and therefore to resist the amendment moved by the noble Lord.

Lord Hutchinson of Lullington

My Lords, I am certainly disappointed because I would have suggested that when one is laying down a duty in a statute it is better to express explicitly what that duty is rather than to express it by implication. However, I do not wish to batter my head against a brick wall. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Schedule 2 [Documentary evidence—supplementary]:

The Earl of Caithness moved Amendment No. 23: Page 109, line 22, leave out paragraph 4.

The noble Earl said: My Lords, in moving this amendment I shall also speak to Amendment No. 24. These amendments take forward an undertaking I gave during the Committee stage, to reflect on the questions of legal representation and opportunity for cross-examination by the accused, when evidence is taken from a witness overseas under a letter of request. As I explained then, the Bill provides that in assessing the weight to be given to evidence taken abroad, the court should have regard to whether there was an opportunity for questions to be put to the person giving evidence.

This can now he found in Schedule 2. We had, however, decided that it was a sufficiently important consideration to bear directly on the admissibility of evidence taken following a letter of request under Clause 27, and for it therefore to be set out in the body of the clause. In our debates in Committee, the noble Lord, Lord Hutchinson, argued that specific provision should be made for the defendant to be legally represented and to have an opportunity for cross-examination. As I said then, no provision would be necessary in our law to enable this to happen. If the purpose was to require it to happen, it would be purporting, in our law, to lay down the procedures to be followed by foreign countries, procedures which in some cases they might, for reasons to be found in their own law, be simply unable to meet.

However, I agree with the noble Lord that there will be some cases, where an accused person had been identified, in which there will be a strong argument for his being represented and for questions to be put to the witnesses on his behalf. The amendments are intended to respond to that concern. The effect will be, as I have said, to transfer the existing provision from Schedule 2 to Clause 27. More important, however, it now includes a specific reference to whether the local law allowed the parties to the proceedings to be legally represented. This means that in deciding under Clause 23 whether to admit or exclude the product of a letter of request, the court's attention would be specifically directed to these two factors—the opportunity for legal representation and cross-examination. That seems to us to be the right approach to what I recognise is a genuine concern. I commend it to your Lordships. I beg to move.

Lord Hutchinson of Lullington My Lords, I have great pleasure in supporting this amendment and expressing my gratitude to the Minister once again for having come a long way along the road to deal with what appeared to be a requirement which ought to be in the Bill. I am very happy to support it.

Lord Mishcon

My Lords, we on these Benches also support the amendment.

The Earl of Caithness

My Lords, I am grateful. The wound is healed between the noble Lord, Lord Hutchinson and myself. We started off well; we went astray a little on the last amendment, but this amendment heals the wound and I am grateful for the comments he made and also for those of the noble Lord, Lord Mishcon.

On Question, amendment agreed to.

Clause 27 [Issue of letters of request]:

The Earl of Caithness moved Amendment No. 24:

Page 18, line 33, at end insert— ("(6) In exercising the discretion conferred by section 23 above in relation to a statement contained in evidence taken in pursuance of a letter of request, the court shall have regard—

  1. (a) to whether it was possible to challenge the statement by questioning the person who made it; and
  2. (b) to whether the local law allowed the parties to the criminal proceedings to be legally represented when the evidence was being taken.").

On Question, amendment agreed to.

Lord Harris of Greenwich

My Lords, before the noble Earl moves the next amendment when is it the intention to rise for dinner? We are about to start on a significant number of very important amendments dealing with videos and related matters. I do not know the Government's intention.

The Earl of Caithness

My Lords, the next amendment should not lead to any debate, but I agree that Amendment No. 26 onwards, will do so and I would suggest that those amendments should be deferred until after dinner.

Clause 30 [Evidence through video links]:

The Earl of Caithness moved Amendment No. 25: Page 20, line 12, leave out ("video").

The noble Earl said: My Lords, this amendment is consequential to amendments that I accepted in Committee. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness

My Lords, perhaps this is an opportune moment to adjourn consideration on Report. I suggest that we should not come back to this matter until 25 minutes past eight.

I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

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