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Standing Committee B
Tuesday 28 January 2003
(Morning)
[Mr. Eric Illsley in the Chair]
Clause 98
Admissibility of hearsay evidence
9.10 am
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 403, in
clause 98, page 57, line 20, leave out 'admissible' and insert 'not to be admitted'.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 404, in
clause 98, page 57, line 20, leave out 'if, but only if' and insert 'unless'.
No. 522, in
No. 405, in
No. 406, in
clause 98, page 57, line 22, at end insert 'or'.
No. 407, in
clause 98, page 57, line 24, leave out 'or'.
No. 370, in
clause 98, page 57, line 25, leave out paragraph (d).
No. 373, in
No. 374, in
No. 409, in
clause 98, page 58, line 2, at end insert
'; and the court shall not in any event admit a statement under that provision if of the opinion that, in consequence, any conviction of the defendant would be based wholly or substantially on statements not made in oral evidence in the proceedings'.
Mr. Grieve: We now move on to consider the proposed changes to hearsay evidence. It has been a central principle of our law, particularly the criminal law, that evidence presented in court should be given at first hand—that is, the person who is to give evidence should appear in court and relate what he saw. I know from my practice in health and safety that numerous exceptions have crept in. For example, business documents are frequently admitted in order
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to prove the truth of their contents, irrespective of the fact that the person who produced the document is not present. Indeed, as we go through the relevant clauses we shall see that the provision in effect takes the old rules on business documents and reproduces them in the Bill with only a few variations. There are numerous other exceptions, but listing them would not be particularly helpful and we shall come across most of them as we debate this chapter of the Bill.
The principle has always struck me as being a sound one. Indeed, the various reports produced by the Law Commission and others over the years have reiterated time and again the basic rule that hearsay evidence in criminal proceedings should be admitted only in limited circumstances. The dangers of allowing the general admitting of hearsay evidence are obvious. The most obvious, in criminal proceedings, is that lawyers are unable to cross-examine and test the evidence: the person giving hearsay evidence can say that it is not his evidence but that of someone who happens not to be in court.
For me, the high point in the erosion of the hearsay rules came after the Omagh bombings, when I discovered to my horror that the Government were intending to pass emergency legislation that would enable conviction on hearsay evidence given by police officers about intelligence reports. It was hedged around with a few more provisions, but that was the nub of it. Although my party supported the legislation, it was fortunate that my father's funeral was being held on the following day and I was allowed to go home, as otherwise I would probably have rebelled. It is noteworthy that that legislation has never been used, for which we should be thankful. Indeed, some seriously questioned whether it was compliant with the provisions of the Human Rights Act on the right to a fair trial.
I have no objection to the codification of hearsay rules. They are widely spread across the chapters of ''Archbold'' and I am satisfied that they could do with some pulling together. When we embark on it, however, we ought to start from first principles. It is noteworthy that the first principle that the Government have chosen to use—and we have had this discussion before on chapter 1—is that hearsay, as a broad statement, is admissible. The Bill ought to say that hearsay is inadmissible except in exceptional circumstances, which we proceed to identify.
The purpose of amendment No. 403 is to change the wording of subsection (1). Instead of saying that hearsay can be admitted if certain tests are fulfilled, it should say that it cannot be admitted unless certain tests are fulfilled. I am the first to accept that the amendment is essentially symbolic. However, symbolism matters. The message that the Committee sends out about how we view hearsay evidence is important.
Amendment No. 404 is a linked amendment, and amendment No. 405 adds a test to the wording of subsection (1)(a). We should look at the criteria and protections for the admissibility of hearsay evidence in clause 98. Subsection (1) starts by saying that hearsay evidence may be admitted in certain circumstances. However, subsection (1)(d) lays out the condition that
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''the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible.''
The entire subsection should be beefed up, and that should start with paragraph (a), which states that evidence is admissible if
''any provision of this Chapter or any other statutory provision makes it admissible''.
Paragraph (a) appears to override paragraph (d). Amendment No. 405 should be inserted to deal with that. I would move the wording in paragraph (d) up to paragraph (a). We are setting up a statutory framework, yet paragraph (a) says that if a provision in this chapter makes hearsay evidence admissible, it should be admissible. I hope that that amendment may prompt some debate.
Amendment No. 406 is a probing amendment. It would be helpful if the Minister could explain the interrelationship of paragraphs (a), (b), (c) and (d). It is not the first time in the Bill that it is not completely clear whether paragraphs are intended to be comprehensive or whether only one of them need apply. The reason behind the amendment is to ascertain the intention. Amendment No. 407 effectively does the same.
I shall leave the Liberal Democrat amendments, Nos. 370, 373 and 374, for others to deal with. Amendment No. 409 deals specifically with what I would call the Omagh rules. It would add to subsection (2)(i), which says:
''the extent to which that difficulty would be likely to prejudice the party facing it.''
I was concerned when we passed legislation after the Omagh bombing that it envisaged the possibility that a conviction could be based on hearsay evidence alone.
I hope that my amendments have provided some material on which we can examine the clause. It has always struck me that some of our current rules on hearsay evidence constitute a prohibition on the ability to present a case. For example, it seems bizarre that the poor old police officer must say, ''Acting on information received, I went to a property,'' rather than, ''I received an anonymous phone call, on the basis of which I went to a property,'' because it can be very useful to be able to amplify on the background to a case. Some categories of hearsay evidence, such as business documents, can properly be admitted, because it is usually possible to call someone to explain a document if someone else disagrees with its content.
The Bill would make a major alteration to the admissibility of hearsay evidence in criminal proceedings. At my meeting with the Minister of State, Lord Falconer, a distinguished civil lawyer, we considered every aspect of the Bill. It was fascinating to listen to him, but it was clear that he could not see the slightest reason why the civil rules should not apply. His attitude, which shone through all our discussions, seemed to be that if everything was thrown into the melting pot, a just result would emerge in the end.
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Hearsay comes into that category. Except in so far as the judiciary decide to use their discretion to reign in the provisions, chapter 2 will widen the tests for admissibility of hearsay evidence virtually to those that apply under civil rules. I have doubts about doing that. One of the great strengths of our criminal justice system is that convictions are based on evidence that is direct and tested. Of course, that is sometimes inconvenient for prosecutors, because it may mean that there is a compelling suggestion that someone is guilty, but it is impossible to prove. An important safeguard lies in the fact that our system of justice requires the prosecution to satisfy jurors so that they are sure of someone's guilt. I hope that the Committee will bear that in mind as we consider the first group of amendments to clause 98.
The Chairman: Before I call the hon. Member for Somerton and Frome (Mr. Heath), I refer hon. Members to the rules of debate contained in Standing Orders. The bringing of refreshment other than water into the Room is not permissible in a Standing Committee. As from this morning, will hon. Members please refrain from bringing cups of coffee into the Committee Room?
Mr. David Heath (Somerton and Frome): Thank you for that timely advice, Mr. Illsley. I do not think I have ever been guilty of that crime.
First, I corroborate the impression—perhaps hearsay evidence—of the hon. Member for Beaconsfield (Mr. Grieve). I formed the same impression from our discussions with Lord Falconer. It gave me, a non-lawyer, cause for concern that his attitude was more cavalier than I might have expected.
I entirely support the hon. Gentleman's argument about amendment No. 403. We have encountered the difficulty several times before during our consideration of the Bill that an inclusionary, rather than an exclusionary, approach to drafting seems to have been taken. That is despite the fact that when one analyses what is meant, the provisions clearly intend to exclude inappropriate evidence, except in particular circumstances. I would accept the suggestion that the difference between the two formulations is one of mood music rather than reality, but it is important mood music. It is important that the statute is couched in the correct form. I, too, support the formulation and general approach that he suggested.
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