Crime (International Co-operation) Bill [Lords]

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Stephen Hesford (Wirral, West): But that is the point—if it is admissible. If it were not, what the hon. Gentleman says would have no point.

Mr. Heath: I am trying to discover whether, all other things being equal, and there being no reason to suppose that what was said was not admissible because of any other consideration in UK law, the evidence would be admissible and would not be precluded by the clause. I would like some clarity on that. The hon. Gentleman will recall our long debates on hearsay evidence in connection with the Criminal Justice Bill. The clause refers to privileged, rather high-powered hearsay evidence; it is hearsay in the hearing of a court, a district judge and a recorder who is providing a record of the proceedings to the satisfaction of the United Kingdom courts. The evidence is really classy hearsay, in the context of what was envisaged under the Criminal Justice Bill.

Stephen Hesford: I am not sure where our discussion is going, but I think that the hon.

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Gentleman is wrong; we are not talking about hearsay. If it came from the defendant's mouth, it is direct evidence against him, not hearsay.

Mr. Heath: The hon. Gentleman has the advantage of me in being a lawyer—

Siobhain McDonagh (Mitcham and Morden): Disadvantage.

Mr. Heath: If the hon. Lady will forgive me, I shall continue.

The evidence is not coming directly from the witness's mouth, because we are not talking about proceedings in a UK court. That witness may not give the same evidence in proceedings before a UK court. As what is said will be brought before the court as a result of the record of the proceedings, which are not before a UK court and have been witnessed by a district judge and the court authorities, it constitutes hearsay evidence under the interpretation normally accorded it. It is not direct evidence because it has not been given in the context of the proceedings of a UK court. Unless I have completely misdirected myself, it seems that, all things considered and provided that the evidence is not prevented from being admissible in other circumstances and is available to a British court as a record of proceedings, it should be potentially used in proceedings against the witness or anyone else. Despite the Minister's attempts to divert me from such a course, I wonder whether he believes that such action is possible and whether subsection (7) would prevent it from happening. I might be making a tortuous point, but there is the potential for such action to happen. I would hate it for us to have got it wrong.

Mr. Paice: I support the hon. Gentleman's probing amendments. We are on new territory and discussing the giving of evidence by telephone, which is not admissible in British courts. The hon. Gentleman was right to want to explore a range of issues with the Government. It is clear from clause 31(4) that the giving of the evidence will be taking place physically in a British court, but that does not mean that it is taking place within British court proceedings, and under their constraints. Such matters need to be more clearly understood. The Minister must explain them.

Secondly, although the giving of evidence by telephone is not permitted in British court proceedings—although I consider that it is perfectly correct—what the witness says may be heard other than by the telephone. Court officials will be present during the proceedings who hear literally rather than by telephone. With respect to the hon. Member for Wirral, West (Stephen Hesford), the matter is more confusing than he suggested when he referred to admissibility. We know that telephone evidence is not admissible in this country. If a person listened to evidence being given by telephone, it is not admissible. However, if a court official was physically sitting at the hearing, heard the witness give evidence and made the admission to which the hon. Member for Somerton and Frome referred, it would not have been heard over the telephone and that should be taken into account. The hon. Gentleman has put his finger on an important point, and I am interested in how the Minister will wriggle out of it.

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Mr. Ainsworth: The Minister will do his best. As it is Thursday afternoon, I cannot resist sharing something with the Committee. I have a note that says, ''Resist. These are new amendments. We have no idea what their purpose is. They do not make sense as drafted. You might wish to offer to write to the hon. Gentleman.''

I have a couple of comments to make about what has been said. The Committee must bear in mind that the telephone evidence was given willingly and that there was no compulsion on the individual to give it. That is different from video link evidence. I say to the hon. Member for South-East Cambridgeshire that we think that its use in domestic proceedings is precluded. We may have to seek the evidence ourselves from the overseas authority, in which case it could be used. However, the point that the hon. Gentleman makes is valid: it may have been heard, so it might be admissible. That is our view at present.

I will do what my note advises me to do, which is to get some consideration on it and respond to the Committee in writing.

Mr. Paice: I am grateful to the Minister for giving way, and for saying that. However, he should reflect on what he said earlier when he deliberates on this matter. Evidence that is given over the telephone is not admissible in British courts. Even if we get evidence from another country, it could not be used in a British court because it would have been gained over the telephone—but he seemed to suggest that it could be used.

Mr. Ainsworth: No, I was making a point about there being two different types of evidence. I was also seeking to allude to the fact that the person was not obliged to give the evidence by telephone: if he was overheard, and rendered himself liable in a British court, more fool he. We must clarify the position, because this is an important point and we need to understand exactly what we are doing.

Mr. Heath: I agree with the hon. Member for South-East Cambridgeshire that evidence that is given by telephone to an overseas court cannot come back here and be admissible. However, under schedule 2(10), the rules of court

''must make provision—

(a) for the drawing up of a record of the hearing''.

Therefore, this is not a question of what some court official may remember. A court official will be producing a record of the hearing. Will that record subsequently be available for use in a British court? The Minister's initial response suggested that that was precluded, and I am seeking to ensure that it is not, because it might be a valuable piece of evidence.

Mr. Ainsworth: The hon. Gentleman tabled his amendments yesterday, and they address an interesting area, which we need to examine. I will write to the Committee before Report so that it knows exactly what the situation is.

Mr. Heath: That was extremely helpful. I am not trying to catch anybody out. The thought that this might be a problem occurred to me only two days ago.

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I am sorry if the Minister's officials were baffled when I first tabled the amendment.

We have had a useful debate, and the Minister now understands my point and accepts that it has some validity, even if I am not right. I look forward to reading his letter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clause 31

Hearing witnesses in the uk by telephone

Mr. Paice: I beg to move amendment No. 49, in

clause 31, page 18, line 20, at end insert—

'(d) confirm that the witness has received independent legal advice'.

After the previous debate, I would be interested to be a fly on the wall when the Minister has a private session with his officials later. I am reminded of an occasion when I was occupying a similar role in a different Department. I foolishly stated to a large audience that the speech that I had been given was so boring that I was not going to deliver it, and that I had written one of my own. Immediately afterwards, a grovelling official came up to me to apologise for writing such a boring speech. I had not realised that she had been present when I made that statement. It is very easy to say the wrong thing.

As for amendment No. 49, we have cantered round the course in a different context. However, where we are seeking to require that the witnesses received independent legal advice, there is a unique context. We have been discussing that we are addressing something that does not exist in the British legal system—the giving of evidence by telephone. For a witness who may well be accustomed to the British system, this would be completely foreign—I use that word advisedly—territory: they will not know about it. If a witness is giving evidence by telephone—albeit accepting the Minister's earlier comment that that is voluntary—there is a case for saying that the Secretary of State should be sure that that witness has received the proper legal advice about what he may or may not be doing and the possible implications of that, especially in the light of our debate. Whatever the Minister's deliberations may demonstrate, there could be legal implications at home for what the witness may or may not say over the telephone to someone else. That is important, because we are dealing with something that is novel in the British legal system—that the witness should be given some legal advice. It is right that that should be included in the Bill.

4.15 pm

The Minister may well refer to the fact that that was debated in the other place—it was—but the answer received then was extremely thin; it seemed to suggest that the witness was already sufficiently protected by schedule 2. That answer is not adequate. Part 2 of schedule 2—''Evidence given by telephone''—refers to the notification of the witness and the conduct of the hearing. It says simply:

''The evidence is to be given in accordance with the laws of that country'',

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where the court proceedings would take place. Nowhere in part 2 is there any reference to the witness being informed of their rights, or of the legal implications of giving evidence by telephone to the country in question, or of the implications back home that may be consequential on that. That is a short, simple point, but we are talking about something novel in the British judicial system and it deserves particular investigation. I hope that the Minister will understand the importance of that matter, so that British citizens, and others who may be brought to use the system under clause 31, are fully aware of their rights.

 

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Prepared 12 June 2003