§ 6.48 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, the rules of evidence are lawyers' law, and many of your Lordships may perhaps be a little apprehensive lest you should be about to hear a discussion of matters which are neither interesting nor intelligible outside the magic circle. I confess at once that this Bill does deal with a technical subject and that I cannot altogether avoid technicalities; but I hope that, at the same time, I can convince the House that the rules of evidence are not only of great practical importance but also (at least, on occasion) of general public interest. I naturally personally regret that the Second Reading of a Bill which is of sufficient substance to occupy 22 pages should start at what is rather a late hour in your Lordships' House, but I apprehend that those who arrange our Business cannot always foresee exactly how long earlier matters on the Order Paper may take.
The Bill deals only with evidence in civil cases. It does not touch criminal practice or procedure (except in some very minor matters in the Schedules, which I shall not have to deal with) and the House will not therefore have to consider those very difficult questions which can arise on such matters as voluntary confessions, the judges' rules, or "putting one's character in issue". Those are all matters which the Criminal Law Revision Committee is currently considering, and in due course we shall no doubt have the benefit of their advice upon them. But any legislation in that field must come at a later stage.
Meanwhile, we have had three most useful Reports from the Law Reform 1340 Committee dealing with certain aspects of evidence in civil cases, and the Bill which I am now commending to the House implements those Reports. Before I explain to the House what the Bill does, I should like to take the opportunity of thanking the Committee for their Reports. They have involved the spending of much time and trouble, and, as is almost invariably the case, the main burden has fallen on those who are already busy men. I am sure that I speak for the whole House when I say that we are greatly in the debt of my noble and learned friend Lord Pearson, the Chairman of the Law Reform Committee, and his colleagues.
I suppose, my Lords, that the one rule about evidence which everyone knows is, "What the soldier said is not evidence"; or, as it is sometimes put, "What the soldier said to the girl is not evidence"—although I apprehend that the result would be the same whatever the sex of the addressee. This, the so-called "hearsay rule", probably gives rise to more difficulties than any other aspect of the law of evidence. Fundamentally, it is beyond question a sound principle that, if you want to prove a fact which your opponent denies, you should have to call the man who saw what happened and not try to rely on what he said to someone else about it. But, as the Law Reform Committee observed, strict application of the rule can exclude valuable evidence; moreover, compliance with it may, and often does, lead to unnecessary expense and wasting of witnesses' time. Besides, in the course of time the rule itself has inevitably been eroded by exceptions and qualifications which experience has shown to be necessary.
The Law Reform Committee recommended a fundamental change in the attitude of the law to hearsay. They proposed that statements made out of court by somebody who had direct personal 1341 knowledge of a fact should prima facie be admissible to prove that fact provided that the party opposite were given adequate notice, so that he could make his own inquiries as to the reliability of the statement, and the right to insist that the maker of the statement is called, if available, so that he can be cross-examined.
In practice, as the Committee pointed out, where the fact is really in dispute the eye-witness will always be called, if available, because either the plaintiff will want to show the court what a good witness he really is or the defendant will insist on the plaintiff's putting him in the witness-box so that he can be cross-examined. But in many cases, once the defendant knows of what the statement consists and the circumstances in which it was given, he will not seriously dispute its accuracy, and it is then a waste of time and money to bring the maker to court and keep him hanging about if, in the event, nobody is going to challenge what he says. Besides, there are always the cases where a really valuable statement, contemporary with the event to which it relates, was made by someone who cannot be called at the trial. In such a case, if the plaintiff cannot put the statement in he may be completely unable to prove his case, however cogent and reliable the out-of-court statement may have been.
It is not surprising that the Committee found good reasons for reconsidering the hearsay rule. Part I of the Bill gives effect to their recommendations, as well as making other important changes in the law. The House will not expect me to go into any detail to-night, but it may be useful if I explain very briefly what the individual clauses do; and, as it is somewhat detailed and technical, your Lordships will forgive me if I stick to my notes rather closely.
Clause 1 in effect abolishes the Common Law exceptions to the hearsay rule. Statutory exceptions, of which there are many, are not affected, but all Common Law exceptions are either superseded by the Bill or are not preserved at all. Those which are not covered by the main provisions in Part I are converted by Clause 9 into statutory rules. Clause 2 is the crux of the Bill. As I have already explained, it constitutes a fundamental change in the attitude to 1342 hearsay by making what I may call "first-hand hearsay" generally admissible, but subject to rules of court. This latter provision is very important because, as Clause 8 makes clear, it is under rules of court that, first, the party seeking to rely on hearsay must give notice of it, and, secondly, his opponent can by counter-notice insist on the maker of the statement, if available, being called as a witness, but at his own risk as to costs if he so insists without good reason. Clause 2 also deals with the situation where a party wants to put in his own witness's out-of-court statement. As was recommended by the Law Reform Committee, the admissibility of such a statement is always subject to the court's discretion.
Clause 2, as no doubt many of your Lordships have realised, is an extension of the Evidence Act 1938, under which documentary hearsay is already admissible but subject to qualifications which have restricted its admissibility to such an extent that the Act has not been of great practical value. The defects in the Act are discussed in detail in the Committee's Report, and I will not go into them here. But the major change effected by the Bill is that oral hearsay, subject to the procedural safeguards I have mentioned, is to be admissible as well as written hearsay. In other words, what the soldier said, as well as what he wrote, is, or may be, evidence. Except on one point, the Bill does no more than make certain evidence admissible. It does not mean that the evidence is conclusive. In every case except one, to which I shall come later, it will, of course, be open to be rebutted.
Clause 3 does not derive directly from the Committee's Report, although its subject-matter is touched on. As the law stands, a witness's previous out-of-court statements can sometimes be put in to show that he has contradicted himself, or the reverse, or because they are contained in a document which he has used to "refresh his memory". But when so put in, they are said not to be "evidence of the facts stated". This is somewhat unrealistic. The judge is told that the witness, who has just said that he spent all Christmas Day in bed with 'flu, wrote a letter on Boxing Day describing what a lovely evening he had at the Ritz. It does not make sense 1343 to the laymen if the law says: "That is evidence that what the witness said in the witness-box is untrue, but the judge cannot in any circumstances rely on it as showing that he was at the Ritz on Christmas Day". Clause 3 lets the judge rely on the statement as evidence that the witness was at the Ritz.
I can deal shortly with Clause 4. The Evidence Act makes documentary records admissible, but again subject to unnecessarily restrictive conditions. Clause 4 makes them more readily admissible, again subject to rules of court and therefore to the notice and counter-notice procedure. The principal change from the Evidence Act is that the recorder does not have to have obtained the information directly from an informant with personal knowledge: it is sufficient if it is transmitted to him through others, provided that each one was under a duty to pass the information on.
Clause 5 may prove to be of great importance. Its object is to facilitate the use of what I may loosely describe as "computerised records" in civil proceedings. The Law Reform Committee do not deal specifically with this topic, but they did advert to the implications of modern methods of recording information. Since their Report was published, I have received from many quarters representations about the desirability of including in implementing legislation provision which would make this type of record admissible. I think the House will agree with the general proposition that the civil law ought to adapt itself to fit contemporary commercial practice—a proposition which was acted on in the 18th century with remarkable success by that great judge, Lord Mansfield. We have computers; they are already widely used, and they will shortly be used more widely still; and the law of evidence must take account of this fact.
Clause 5 is based on the principle that where a computer is regularly used for the purpose of a particular regular activity—for example, to work out the weekly pay-sheet for a company—then a statement contained in the final "print-out", or whatever form the eventual product is, is in all probability accurate and should therefore be admissible in evidence. This seems reasonable, because no business is going to "computerise" itself at vast 1344 expense unless the result is going to be probably accurate and reliable. Again, such evidence will be open to challenge. For various reasons, some obvious and some less so, computerised records cannot be fitted into the framework of the Evidence Act, 1958, either as it is now or as modified by the Bill; hence Clause 5. The essence is that a statement which fulfils the conditions set out in subsection (1) is admissible, but, as in the other cases which occur under Clauses 2 and 4, the party seeking to put the statement in must give notice and rules of court will be able to require him to name persons concerned in producing the statement whom his opponent can insist on his calling as evidence and can then cross-examine. There are a great many points of detail arising on Clause 5, but I think it would be more convenient to discuss them in Committee. I am not absolutely satisfied on some points about the drafting although I have had the advantage of a good deal of advice from experts.
Clause 6 reproduces in substance, provisions currently in the Evidence Act which allow documents to be proved by copies and gives the court guidance as to the matters to be taken into account when considering documentary hearsay. Clause 7 makes provision for challenging, or supporting, the credibility of the maker of an out-of-court statement which is admissible in evidence, much on the same lines as a witness's credibility can be challenged or supported; it is based on the Law Reform Committee's recommendation. Clause 8 provides for the necessary rules of court. Inevitably, when much of the Law Reform Committee's recommendations depends on procedural matters, such as the giving of notices and counter-notices, much of the law must be in the rules. The framework of the notice and counter-notice procedure is in Clause 8, but the details must be left to rules, since they will vary from court to court.
I should perhaps draw this House's attention briefly to four points: first, a party who complies with the rules and provides no counter-notice will be entitled to put his hearsay evidence in. He will thus be spared the expense of having the witness ready "just in case" and he will know this well before the trial. Second, the circumstances in which a 1345 person is to be treated as unavailable as a witness (and which thus let in his out-of-court statement as of right) have been expanded to include cases in which he cannot be identified or expected to remember the event (in this the Bill follows the recent Criminal Evidence Act 1965).
Third, the rules will be able to give the courts an overriding discretion to admit hearsay notwithstanding failure to serve the appropriate notices, et cetera. This again is in accordance with the Committee's recommendation. And, fourth, the Bill does not, as the Committee suggested, set out the rules in a schedule. I do not think it would really be practicable to do so, and in any event it would be impossible to schedule the county court and magistrates' courts' rules (not to mention other courts and tribunals). But, even if this was not the case, I think there is a lot to be said for letting rules of court be made by the appropriate rule committee.
Clause 9 makes a number of essential Common Law exceptions to the hearsay rule, which are not replaced or superseded by the Bill, operate as statutory rules, thus enabling the Bill to make a clean sweep of the Common Law exceptions. Apart from admissions, these Common Law exceptions are those which allow second-hand hearsay (that is, statements made out-of-court by people with no direct knowledge of the facts) to be admitted. Second-hand hearsay is not within Clause 2 and may not fall within Clause 4 or 5, but in the special circumstances it ought obviously to be admitted. Clause 10 contains the necessary definition, et cetera. The only point I need make on it is that it is intended to make it possible to use enlargements of microfilms of documents by treating them as copies. There is currently some doubt about this, and the subject is one of great importance in view of the number of undertakings which make a practice of microfilming and then destroying bulky papers. As at present advised, I think I shall need to move some drafting Amendments in Committee to make this clearer.
Part II of this Bill implements two other Reports of the Law Reform Committee. The subjects dealt with are rather less technical than hearsay and certainly some of them raise matters of 1346 considerable public interest. Clause 11 reverses what is known as the "rule in Hollington v. Hewthorn" and makes a previous conviction before a court in the United Kingdom admissible in evidence in civil proceedings to prove that the person convicted committed the conduct on which the conviction was based. The House may remember that we discussed this at a late stage of the Criminal Justice Bill last summer, when the noble and learned Viscount, Lord Dilhorne, moved an Amendment to make such convictions conclusive. For the reasons I explained on that occasion, I had doubts about making them conclusive and the Law Reform Committee apparently share those doubts, because they have recommended that the previous conviction should be evidence but that any party disputing it should be entitled to do so. The Bill adopts this course, with the result that the burden will be on a party who seeks to dispute the correctness of the conviction.
I do not think there is any need for me to argue at length the merits of the policy. Recent cases have emphasised the unsatisfactory nature of the current law. As the Law Reform Committee observed, a conviction means that the offender's guilt has been proved beyond reasonable doubt under very strict rules of evidence procedure. It really is absurd to say that that is not to be evidence of his guilt. Clause 11 makes it such evidence, whether or not the convicted person is a party to the civil proceedings.
Clause 12 makes a similar provision for findings of adultery in matrimonial causes and adjudications of paternity in affiliation proceedings. As the House probably knows, we at present have the rather ridiculous situation in which Mr. Smith can divorce Mrs. Smith on the grounds of her adultery with Mr. Jones, but when Mrs. Jones tries to divorce Mr. Jones for the same act of adultery with Mrs. Smith, she has to prove it all over again and cannot rely on the decree pronounced in Smith v. Smith, notwithstanding that the court on that occasion found the adultery proved as against both Mrs. Smith and Mr. Jones and that the divorce court, unlike other courts trying civil cases, is under a duty to satisfy itself of the truth of the charges. The provision about affiliation orders is likely 1347 to become important when we implement the Russell Report on illegitimate succession. The justification for special treatment for these orders is that they are not made unless the mother's testimony is corroborated in a material particular.
Clause 13 will, perhaps, prove to be the provision of greatest interest to the public. Its effect is that in defamation proceedings a previous conviction is to be treated as conclusive evidence of guilt. This is in accordance with the Law Reform Committee's recommendations; it is not a question only of probative value but also of legal policy. The Committee thought (and I agree) that convicted persons ought not to be able to use libel actions as a means of reopening criminal proceedings: the right way to do that is to appeal. I think the whole House will have in mind recent cases where this has been done. It is most unsatisfactory, because the evidence is necessarily stale by the time of the civil trial and, as the law stands, the defendant still has to prove all over again the plaintiff's guilt without being able to rely on his conviction. Clause 13 completely reverses the position: not only can he put the conviction in; once proved, it is conclusive.
The House will observe that Clause 13, unlike the Law Reform Committee's Report, said nothing about acquittals. An acquittal has, as everyone realises, no probative value at all since it is perfectly consistent with the criminal court's having been of the opinion that the accused was probably guilty. The Committee thought, nevertheless, that as a matter of policy nobody should be entitled with impunity to say that an acquitted person was really guilty. My Lords, one sees the force of that. There is something to be said for finality. On the other hand, it could be greatly in the public interest that a rogue lucky enough to have got off should be publicly exposed. There are arguments either way, but the Bill comes down firmly in favour of not giving any effect to an acquittal.
Clauses 14 to 17 implement the third of the Law Reform Committee's Reports on Evidence. This deals with privilege; that is to say, the right of a witness, in some circumstances, to refuse to give evidence. My Lords, I can take these clauses quite shortly. Perhaps the most significant feature is what they do not 1348 do and what the Committee did not recommend. The House will see that there is nothing in the Bill about privilege for priests, doctors, marriage guidance counsellors or others who are consulted in confidence. There are, undoubtedly, conflicting views about this, but the Committee were opposed to any extension of the current law, and the Bill accepts this view.
Clause 14 extends to incrimination of a person's husband or wife the current privilege against self-incrimination. One may say that there should be no such privilege at all, and that is a perfectly tenable point of view. But while we have the privilege it should surely cover spouses. As the Committee said, there is something very distasteful about compelling a man to incriminate his wife. Clause 15 is largely technical. In certain proceedings, under the Patents Act 1949, a patent agent can play the part normally played by a solicitor in ordinary civil litigation but there is some doubt whether in doing so he is covered by the solicitor's ordinary professional legal privilege. Clause 15 resolves that doubt in his favour.
Clause 16 abolishes a number of obsolete privileges which are by now anachronisms. The abolition of all these privileges was recommended by the Law Reform Committee. I think that the only one of any general interest is the right of a witness in some cases to refuse to answer questions tending to show that he has committed adultery. My Lords, this privilege stems from the days when adultery could be severely punished; and that is not the case to-day. And, anyhow, abolition of the privilege has repeatedly been urged by a number of authoritative bodies.
Clause 17 and the Schedule make a number of miscellaneous Amendments to existing enactments, consequential on the extension of the privilege against self-incrimination to the incrimination of the spouse. Clause 18 provides an interpretation, and so on, of the Bill and deals with its application outside the ordinary courts of law. The Bill applies only in England and Wales, and Clause 19 empowers the Parliament of Northern Ireland to enact corresponding legislation. Under Clause 20 the provisions dealing with previous convictions in defamation actions and with 1349 privilege come into force at once; the remaining provisions on one or more appointed days.
My Lords, I hope that I have not detained the House too long on these rather technical matters. Perhaps the Bill has not been a sufficiently dramatic subject for the experimental television test now in progress, though it is not altogether irrelevant to that. If your Lordships were to examine in detail—not that I am inviting you to do so—Clause 6(1) and Clause 10(1) it would be apparent that if (which I hope will not be the case) anyone ever wanted to prove a statement made by me this evening, he could do so by means of a still photograph of me speaking and a transcript of my speech derived from the film and sound track. My Lords I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 7.13 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I agree with the noble and learned Lord the Lord Chancellor that this is a Bill full of detail. Indeed, I find it very difficult to make a Second Reading speech on it at all; and that being the case, I shall make a short one. Nevertheless, perhaps there may be some merit in pointing out to your Lordships' House the very few respects in which this Bill does not agree with the three Reports of the Committee, the Chairman of which was the noble and learned Lord, Lord Pearson, whom with the noble and learned Lord, Lord Denning, I expect your Lordships are longing to hear.
As a matter of fact, my Lords, I am not sure that the noble and learned Lord the Lord Chancellor was entirely right when he mentioned Clause 3, because it seems to me that in paragraph 35 onwards of the Report on Hearsay Evidence in Civil Proceedings there is a recommendation which comes to much the same as what is in Clause 3; and I do not therefore think that there is much difference between what the majority of the Committee (I think a narrow majority) thought and what is in the Bill. The other major change—it is probably not a major change, but a departure from what the Committee recommended in Part I of the Bill—is that these rules, as I understand it, under the Bill are to apply in magistrates' courts. The Committee who considered this weighed up 1350 the points for and against making this the case, but it seems to me, looking at paragraph 50 of their Report (and indeed they recommended that this procedural matter should not apply in the magistrates' courts), that the most important reason against it was that it is so difficult to see how the rules are going to be made and how they are to be interpreted by the magistrates.
For instance, how can the procedure set out in Clause 8 for the service of counter-notices, and the other safeguards which are so very necessary for the new form of hearsay evidence to be acceptable in the courts, be adapted to the magistrates' courts procedure? I should be grateful if the noble and learned Lord could give us a few indications of how he thinks this will work in practice, because I find that in their Report the Committee set out some extraordinarily valid reasons why this should not be the case, and I wonder why the Government have gone against this recommendation.
My Lords, my chief concern about Part I of the Bill relates to this matter of the computers. I agree fundamentally with the noble and learned Lord the Lord Chancellor that we must keep our law on evidence sufficiently up to date to be able to take account of the evidence which comes from computers; but I was very glad to hear him say that he was not altogether satisfied that the Bill at present is quite perfect in this respect. If you accept the principle that the product—or, as I believe it is called in a trans-Atlantic phrase, the "print-out"—of the computer may be put before the court in one form or another, that is all very well, so long as there are reasonable but adequate safeguards to discover, or to enable the adverse party to discover, how this was made.
It will be seen by your Lordships from Clause 5(1)(a) that one of the conditions for the admission of this sort of computer evidence is that at the time when the document was produced the computer was operating properly. That is all very well, my Lords. But what about the period of time between the moment when the information was fed into the computer and when the final document being put before the court was taken out of it again? I have been doing my best to study a considerable amount of American material on the subject of computers 1351 and the law, and I believe that it is not impossible to direct computers, during the time that they have in their digestion the information which is subsequently extracted from them; to direct them to change it. It may be that if one were clever enough, electronically and otherwise, one could "fiddle" the result and what the computer says. One could no doubt re-run the whole programme with some difference if one wished to be sufficiently fraudulent. I am not sure that the Bill provides a sufficiently broad framework for the rules to deal with some of these possible activities—and I do not think this doubt is altogether fanciful.
My Lords, there is another thing which arises out of this. Clause 8(2)(a) says that the rules may provide all the detailed information which is necessary to enable the adverse party to challenge the hearsay statement. But it seems to me, unless the noble and learned Lord can tell me to the contrary, that it is in the first instance for the party producing the computerised statement to say who he is prepared to call to support that statement. He may say that the proper person to call in support to give oral evidence is the computer operator who took the statement out of the computer. But the adverse party will not thereby be able, if he wishes, to challenge the whole of the computer's evidence. It may well be that the person who actually extracted the information from the computer was not in charge of it the whole time the information lay inside the computer. It may be that a number of other people, who were authorised to do so, put in or extracted information or otherwise tinkered with the computer during that period.
I should have thought that at any rate it would be considered by this House whether there should not be a special provision in the case of computers, whereby the person who wished to call these computer documents in evidence could not only give an exposition to the adverse party but should also give notice, if required by the adverse party, that he was to call other people in his employ if those other people would be able to prove or disprove what the computer said. For this result, of course, a subpœna is not good enough, because if the adverse party calls witnesses in his opponent's employ 1352 under a subpœna, they are his own witnesses and cannot be cross-examined, and there may be difficulty arising out of that.
I think there are other matters which would arise under the Rules, and I hope that the Bill will be wide enough to deal with them. For instance, I should have thought that anybody who wished to produce computerised material as evidence in courts should first of all have to turn it into written English. It would not be good enough for him simply to turn up with a long piece of tape or electronic wire and hand that to his adversary, saying, "Here is my evidence; you interpret it". I think it would be necessary for him to ensure that a proper transcription in English was available.
The question of discovery is also liable to be difficult in the case of computerised material, because it may be not only the product of the computer that should be discovered but also the information that was fed into it in the first place, and upon the basis of which it produced its statement. I hope the noble and learned Lord will be prepared to consider some of these points and ensure that the Rules are really wide enough to deal with them.
Referring to Clause 10—and this is extraordinarily relevant to what the noble and learned Lord said at the end of his speech about television—I am told that there are computers which work by means of some sort of visual flashes of light. Subsection (1)(d) would appear to apply to films or television, and I do not know whether the noble and learned Lord had in mind that there is also a method by which computers can produce information. I am concerned whether the words "visual images" are wide enough to deal with the type of operation which in some cases is used in computers. There are a number of detailed points in this, but I should have thought they were all worth covering in the Bill or making provision for in the Rules, so that we shall get off to the right start if we are to have computers called in evidence, as I hope we shall be able to do.
I have only two points to raise on Part II of the Bill. Here the Bill implements recommendations from the two Reports of the Committee. The noble and learned Lord mentioned the question of whether acquittal should be good 1353 enough evidence in an action for defamation. Though perhaps this is a rash thing to say when the noble and learned Lord, Lord Pearson, is here, I tend to agree with the Bill that in these circumstances the defendant in a defamation action should, if the plaintiff has been acquitted, be required to prove that after all the plaintiff was guilty in the way he was alleged to have been. One compares it with what is said at the end of paragraph 29 of the Report dealing with the rule in Hollington v. Hewthorn, but I agree with the noble and learned Lord on that.
One difficulty relates to courts-martial. Here again it is a matter of judgment but the Law Reform Committee suggests that convictions by courts-martial should not be subject to the same rules as in the case of the ordinary rule in Hollington v. Hewthorn where you are trying to prove it all over again in a case of defamation. Courts-martial should not fall into the same category as convictions in courts in Great Britain. The Bill says that they shall fall into the same category, and the result of that will be that a defendant will have to undertake the onus to prove that a court-martial was wrong. The Law Reform Committee points out that this chiefly applies to the ordinary Hollington v. Hewthorn situation. This may mean a court-martial which sat abroad. It may be very difficult for the witnesses to bring back the evidence or to bring back the witnesses who will be necessary to deal with the case. In this instance, I agree with the Law Reform Committee and not with the Bill. Again, this is no doubt a matter with which we can deal in Committee stage.
As a whole I welcome the Bill very much. Its recommendations are set out in the reasoned arguments so carefully explained in the three Reports which are its foundation. I understand that the Evidence Act 1938—this relates to Part I of the Bill—was an experiment. It has not been as successful as one might have hoped, and this is now a new and rather more advanced experiment, with new rules and a new substance as well. I think that it is well worth while. I hope that your Lordships will approve the Bill and give it a Second Reading.
§ 7.28 p.m.
§ LORD DENNING
My Lords, I will not detain your Lordships long at this 1354 hour, but I should like to pay tribute to the work of the Law Reform Committee, of which the noble and learned Lord, Lord Pearson, has been the Chairman, for these three Reports which they have made and which are now to be implemented.
This Bill produces an important transformation of our law—of our rule against hearsay. Perhaps the classic exposition of this rule is to be found not in any law book but in a work of fiction, in the celebrated case of Bardle v. Pickwick when, Sam Weller replies to the judge:'Oh, quite enough to get, Sir, as the soldier said ven they ordered him 350 lashes.' 'You must not tell us what the soldier, or any other man said, Sir,' interposed the judge; '[...]tis not evidence'.That is the classic exposition which all law students know. What the soldier said is not evidence.
But it is not only hearsay, it is also the written word which has not been evidence. All reports which are made after an accident, statements taken by the police, reports made to employers and others—none of them has been admissible in evidence under this rule against hearsay. This has been a great brake on the effective search for truth.
When one looks at this new Bill, one can regret, perhaps, that it is rather complicated. For myself, I am glad that it is to be extended, rather more than the Committee suggested, to the magistrates' courts. They should not find any great difficulty about it. Perhaps I can express the change in two simple sentences which I think underline the position. The rule against hearsay is hereby abolished. Hearsay at first hand is hereafter to be admitted in civil proceedings. I think that if magistrates or their clerks apply those simple rules they will be able to operate the Act.
But, apart from welcoming this abolition of the hearsay rule, I would say that it was founded in the old days on the idea that no-one could be trusted to say the truth unless he was on oath, and you really could not accept anything unless it had been first tested by cross-examination. Well, we know now that people are just as apt to tell lies on oath as when not on oath. In fact, it is much more reliable, as I have always thought, to go on a statement made at the time of the accident, the injury, or whatever it may 1355 be. If you have a written document, let that in. It is far more valuable than what is thought to be remembered maybe five or six years afterwards. So much for the rule against hearsay.
I should now like to deal with the next part of the Bill, what is called the rule against Hollington v. Hewthorn. It was 25 years ago that I argued that case. It was my most ineffective advocacy that allowed the Court of Appeal to make that wicked decision. I feel irate about it, even now, but let me tell your Lordships what happened. It was just an ordinary motor car case. Young Hollington was driving his car along a road, and round a bend, on the wrong side of the road, came Hewthorn's car. The policeman came up and took a statement from young Hollington as to what had happened. Afterwards Hewthorn was prosecuted for driving without due care. Hollington gave his evidence, and Hewthorn was convicted on Hollington's evidence. Hollington then brought an action in the civil courts for damage to the car and for injuries to himself. But before the case came on for trial young Hollington died. We went on with the case against Hewthorn with Hollington's father as his administrator. I argued that the statement to the police ought to be admitted in evidence. The court would not have it. I argued that the conviction showing that Hewthorn had been convicted of careless driving ought to be admitted in evidence. The court would not have it. They said that it had nothing to do with our case. Res inter alia acta is the legal maxim. We were thrown out of court because we had no evidence to prove our case.
So what happened after that. Your Lordships remember Mr. Hinds, who was duly convicted in a criminal court. Years afterwards, Inspector Sparks wrote an article for a newspaper and Mr. Hinds brought an action against the newspaper for libel. Inspector Sparks would have liked to say: "You have already been convicted." But, oh no. It was said: "The rule in Hollington v. Hewthorn says that that conviction is res inter alia acta and has nothing to do with the case. You go and prove it all over again, Inspector Sparks." According to that jury, Inspector Sparks did not prove his case, and Mr. Hinds got his damages.
1356 In a case that we had more recently than that a bank robber went into a bank with two or three others and robbed the bank of £50,000. He was charged with the robbery and duly convicted at the Old Bailey. The bank then discovered that in his bank account in some other branch he had £16,000. So the bank sued him, and said: "You have robbed us of £50,000. We want damages against you". He sought to say: "That is no good. That conviction is not evidence against me that I robbed the bank. I want another jury to hear the case, and for it to be proved all over again". Well, we did not let him have another jury. We got over it like that. At all events, how welcome it is that the bad old rule of Hollington v. Hewthorn is being done away with by this Bill!
Now for the third point, on privilege. I welcome more what the Committee have not recommended. Time after time the question arises: When is a witness entitled to say, "I refuse to answer"? It is almost an academic question if a priest or a clergyman goes into the witness box and he is asked to say what happened in the confessional. The point never arises; it is not a practical question. More practical is the question of the doctor and the patient. Is the doctor bound to answer? Is the banker bound to answer? What is of more interest to me: what about the marriage guidance counsellor? Frankness is essential in conciliation procedure, and we have found a way in the courts to deal with this by saying it is the privilege of both parties. If they both agree that it is not to be disclosed, all well and good, and that meets the case.
I hardly dare mention the claim of the journalists in the presence of the noble Earl, Lord Arran, but we had a case where journalists claimed that they had the privilege and were not bound to disclose information. All I say is that, as it is the ultimate, last resort, the power of the court must be there if it is essential that justice should be done. But hardly ever does it arise, because the court, like everyone else, respects the confidences, whether of the priest, the banker, the doctor or the journalist. It is only a last resort power, which I am glad to see the Committee have not recommended should be taken away.
1357 As to the two or three small points on which this Bill goes beyond the Committee's Report, I would say how welcome it is that the magistrates' courts should have the same rulings in civil cases as our ordinary courts are to have. For myself, while in defamation actions I see that convictions should be conclusive, in others I do not see that the reasoning ties to them to the same extent. On the whole, I would support the small amendments made in this Bill to what the Committee recommended and I wholeheartedly support this excellent reform.
THE EARL OF ARRAN
My Lords, before the noble and learned Lord sits down, it may be that my memory serves me falsely, but am I not right in saying that a journalist who refused to produce the source of his information in a spy trial about ten years ago, was committed for trial and convicted?
§ LORD DENNING
That was the case that I had in mind. It was one of those very exceptional cases to which I referred.
§ 7.40 p.m.
§ LORD PEARSON
My Lords, I should like to say a few words on this Bill, and in particular to express a welcome for the Bill on behalf of the Law Reform Committee, on whose three Reports it is founded. As has been mentioned, the Bill makes some modifications in the recommendations of the Committee, and with regard to most of them I am fully content, and indeed positively in favour of them. But I should like at this stage merely to make some reservations as to two of the points involved, to which attention has already been directed by my noble and learned friend Lord Colville of Culross.
One is whether it is right to apply this rather complicated system, with its, as I think, entirely necessary safeguards, to procedure in magistrates' courts. It may indeed be right, but I should like to consider it further, and I do not feel sure about it. The other question is whether it is right to make admissible in civil proceedings conviction by court-martial, in particular courts-martial held outside this country; and whether it is fair to impose on a party in this country in civil proceedings the rather heavy burden of proving that some conviction abroad—it might be in a very distant country—was correct. That also I should like to consider further.
1358 As to Part I of the Bill, there is very little left to say, and I want only to say in a sense something on the other side. The Bill contains some rather extensive safeguards to impose limits on the admission of hearsay evidence; and I think those safeguards are very proper and necessary safeguards. I say that partly because there was an article in a legal periodical which had some adverse criticism of the Report on the ground that it was over-cautious and recommended too many safeguards. I think, however, it is right from that point of view to mention that the rule against hearsay evidence is a very ancient rule which was invented and developed and confirmed by the courts over a very long period of years—250 years or so—and in its application to what is in fact hearsay evidence in the literal sense there is a great deal of good sense in the rule.
May I give a very simple example? Suppose a witness were allowed to say, "I heard a bystander state that he saw the defendant driving his car round the corner on the wrong side at 80 miles an hour". That evidence is evidence of inferior quality for four reasons. First of all, the statement made by the bystander may have been misreported by the witness. Secondly, the original bystander who made that statement was not speaking on oath, and therefore was not necessarily taking any particular care to speak accurately. He may have been more interested in making an impression on his audience. Thirdly, the person who made the statement, the bystander, is not present in court to be observed or for his reliability to be assessed. Fourthly, he is not there to be subjected to cross-examination. For all those reasons, hearsay evidence, in the literal sense, constitutes evidence of bad quality, and therefore I think it ought to be admitted only subject to suitable safeguards being observed. That is what this Bill does, and I would agree, because it will be useful in special cases. But, on the other side of the matter, I think the hearsay rule was ill-adapted to written statements and written records, and it has done much harm in excluding good quality evidence in this sphere, as in the recent and well known Myers case, which was decided in your Lordships' House.
Then sometimes a fact has to be proved but the evidence of it will not be disputed. 1359 In such cases a written statement, not in any way challenged by the other party, is all that is required and there is no need to call the maker of the statement as a witness. Secondly, there is the familiar and, I think, important case where a witness is giving evidence some two or three, or even four, years after the event. He may have very little actual recollection of what happened, and his impromptu invention is usually of no value; or it may be positively misleading. He may, however, have made a statement within a week or so of the event. If the statement was fairly taken it may be extremely valuable. On the other hand, the statement might have been unfairly taken by a series of leading questions, to which the person questioned was willing to say, "Yes"; and perhaps he was equally willing to read over and sign what had been written down. If that is the way the statement was taken, it is virtually worthless. And here again there is need for these safeguards.
As to official and business records, and evidence of computers and so on, these are, to my mind, plainly outside the reasonable scope of the hearsay rule, and they ought to be admitted if suitable conditions are satisfied. Clause 5 of the Bill makes heroic efforts to deal with the computer problem, and we shall have to see how it works, if and when it has become law, and also we shall see what further Amendments can be proposed to it. We on the Law Reform Committee, perhaps acting somewhat wisely, did not deal with this thorny and difficult subject. So that subject is left wide open to others.
As to Clauses 11 to 13 of the Bill, dealing with the rules in Hollington v. Hewthorn, my noble and learned friends have explained what is involved. Convictions are to be admissible as evidence in civil proceedings; acquittals are not. The reason for the difference is that an acquittal may mean only that the jury were not satisfied beyond reasonable doubt of the accused's guilt. Under the Bill, all acquittals will continue to be inadmissible in any civil proceedings. That involves a modification of the recommendations in the Report, but it is a simple and logical and straightforward rule, and for myself I am entirely content with it.
As to the third subject of the Bill, privilege, as my noble and learned friend the Lord Chancellor has pointed out 1360 perhaps the most important recommendations contained in the Report on which this Part of the Bill is based were negative recommendations. They advised against the creation of certain new privileges which were suggested. There are some interesting privileges of this kind, but the question considered was whether more of them should be created, and for the most part negative answers were given in the Report. Any privilege of this kind tends to hamper the administration of justice by withholding from the court some of the relevant evidence which might have assisted the court in performing its task of ascertaining the facts of the case. Therefore, the creation of new privileges is prima facie undesirable, and that is the broad general basis of the Committee's negative recommendations. These negative recommendations do not appear in the Bill except negatively, as omissions but anyone can ascertain from the Report what suggestions have not been accepted.
§ 7.48 p.m.
§ LORD WILBERFORCE
My Lords, I want to make only two very short observations, and the first is on Clause 5, which deals with computers. As the noble Viscount who spoke from the Opposition Bench said, there are a number of details in this clause which it is not appropriate now to discuss, but I think that the House ought to appreciate that this is not merely modernising the law in the direction where it ought to be modernised; it is dealing with a very important subject where the only evidence available will be computerised evidence, and it is evidence which is going to affect a number of minute, everyday transactions in which the ordinary man is greatly interested. It will very soon only be possible to prove what a man is entitled to in the way of wages or benefits, or the state of his bank account, by reference to a computer. It is not an alternative; it will be the only way to do it. That is why this clause is a vital clause, and why it is vital to get it right.
There are two points to be made about this clause. The first is the question of the technicalities, and I think the noble and learned Lord the Lord Chancellor has very fairly said that he wil consider at a later stage representations as to some of the more technical 1361 matters; for example, the definition in subsection (5) of what a computer is. One must look at that very carefully and be sure one has it right.
The second point arises out of the rule-making provision in Clause 8, which envisages that the more particular matters as to the admission of computer evidence shall be dealt with in the Rules. I suggest that there are two points to bear in mind here. The first is that the rule-making power itself should be wide and flexible, because I am sure we shall have to feel our way forward in this. I am convinced that the right way to do it technically is to give ourselves a good deal of latitude so that we may change the Rules as circumstances make it necessay. When one comes to make the Rules, I expect the noble and learned Lord the Lord Chancellor will be able to say that he expects the rule-making authorities to consult, so far as possible, with businessmen and technicians who know how these things work, so that something workable and related to the reality is made available for the courts.
Another point which I cannot refrain from making echoes what has been said by the noble and learned Lord, Lord Denning; that is, to express regret at the great complication which the Bill has introduced into this subject in some of the language used. The purpose of the Bill is to deal with the hearsay rule, which every layman knows and understands, and yet that rule is not referred to as such. We had an admirably clear statement from the noble and learned Lord on the Woolsack in perfectly plain English as to what was intended; we had a two sentence draft given to us by the noble and learned Lord, Lord Denning, and one feels that it ought to have been possible to deal with this matter rather more simply than, for example, it is dealt with in Clause 1(2), which contains a provision worthy of any Finance Bill in its complication. I will not take time by reading it now.
It seems ungrateful to look this gift horse in the mouth, but I feel that for many years English lawyers have been far too sensitive and technical about admitting evidence in civil proceedings, and far too fearful of letting in what often is much better evidence than what a witness says in the witness box. Often by the time counsel has argued what a 1362 particular subsection means, and counsel on the other side has argued to the contrary, and the judge has given his ruling, it would have been much quicker and cheaper to have called the witness or produced the document. However, we must grapple with it in Committee, and if we can simplify the language it will be a good thing. I could not let this language pass without a mild protest at the thorny character of some of the devices used to bring about otherwise excellent reforms.
§ 7.53 p.m.
§ THE LORD CHANCELLOR
My Lords, I am extremely grateful to those of your Lordships who have taken an interest in this Bill this evening, and I can best repay that by being extremely short. We shall of course take into account everything that your Lordships have said. I fully appreciate the importance of providing for computer evidence. We have had to do this on our own because it was not expressly covered by the Law Reform Committee's Reports. We have taken technical advice about it, but I recognise its importance. I should welcome assistance from any quarter. The only thing I would suggest to the noble and learned Viscount, Lord Colville of Culross, is that if we make the conditions for the admission of computer evidence too difficult, then Clause 5 will be useless, and it is of course essential that it should be able to be used.
My Lords, it is really, in a sense, the evening of the noble and learned Lord, Lord Denning, the Master of the Rolls. Seeing Hollington v. Hewthorn, at long last the Knight has triumphed over the Dragon. In regard to magistrates' courts, I quite agree that there is a good deal to be said both ways, though it would seem rather strange if, in civil proceedings in a magistrates' court, that was the only court which had not the advantage of having the simplified law of evidence but had a stricter law of evidence than any other kind of court. On the subject of courts-martial there are doubtless things to be said both ways. In a sense, it might be rather a slight on courts-martial not to treat them in the same way, and of course many proceedings before courts-martial are for ordinary criminal offences; and in so 1363 many cases, if not most, either those concerned are all back in this country, or they can easily be brought back by the defence services.
We shall give the most careful consideration to the other suggestions made before taking the Bill to its next stage. I cannot resist saying that my first reaction, on seeing the Bill, was whether it was really necessary to have anything quite so long and complicated on what, after reading the Reports made by the Law Reform Committee, I had thought were somewhat simpler points. Indeed, I had to read Clause 1(2) quite a number of times before I understood what on earth it meant. However we must be thankful for small mercies. Perhaps one 1364 day we shall get to the point, which after all is not uncommon in other systems of law, in which everything is evidence and it is entirely for the court to decide what weight it will attach to each piece of evidence; but at least we have got this far.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.