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This is the fourth Bill I have introduced this Session to give effect to recommendations for law reform which have been put forward by the Law Commission. The Bills implement no fewer than seven of its reports. I am sure that noble Lords will join me again in thanking the Law Commission for their excellent work towards simplifying and modernising our laws.
When Sam Weller remarked in the case of Bardell v. Pickwick that he had quite enough to get, "as the soldier said ven they ordered him 350 lashes", the judge said, "You must not tell us what the soldier, or any other man, said, sir. It's not evidence". That is the hearsay rule. More prosaically, it may be expressed in this way: an assertion other than one made by a person while giving oral evidence is inadmissible as proof of the facts asserted. In its usual application, the rule is concerned with statements made by persons other than the witness, like the soldier, but it also applies to the previous assertions of the witness himself. The origins of the rule are not entirely clear, but there appear to have been two principal reasons for it. The first was that it was doubted whether juries would be able to evaluate hearsay evidence adequately. The second was that the use of hearsay evidence by one side would prevent the other side from cross-examining the maker of the original statement. In civil cases, the first reason has now lost its force: since the 1930s very few types of civil case have been tried by juries.
Exceptions to the rule, both statutory and common law, have gradually developed and as a result of the Civil Evidence Act 1968 the position in civil proceedings in the High Court and county courts is that first-hand hearsay will usually be admissible, if the parties agree or if various conditions are met.
As a result of criticisms which were made to it about the hearsay rule, the Civil Justice Review Body recommended in 1988 that there be an inquiry into the usefulness of the rule; and I referred the matter to the Law Commission. Another significant development at that time was the abolition of the rule in Scotland by the Civil Evidence (Scotland) Act 1988.
As is its customary practice, the Law Commission first issued a consultation paper which made out the case for reform and provisionally suggested the abolition of the rule. It is important to emphasise the strong support which that consultation paper received. Among bodies which welcomed its proposals were the Council of Her Majesty's Circuit Judges, the Association of District Judges, the Magistrates' Association, the Law Society and the National Consumer Council.
Some notes of caution were, however, struck by a few consultees. Two points which were made were, first, that there is a need for the best evidence to be produced if at all possible; and, secondly, that there is a need for a party to be able to test the other side's evidence in cross-examination.
The Law Commission took those arguments into consideration when producing its final report, and the Government share their view that they can be met by the provision of various safeguards. Such safeguards were, indeed, felt necessary by most consultees. They relate to the giving of notice, the weighing of hearsay evidence and cross-examination.
The commission's report confirmed the proposals in the consultation paper and recommended the abolition of the hearsay rule. The Government fully agree with the commission that the hearsay rule is difficult to understand and to explain to witnesses and litigants. The 1968 Act and rules of court made under it are complex, unwieldy and in some respects outmoded. The provisions on notice impose unrealistic requirements and have fallen into disuse, while those on records, especially on computer records, do not accord with business life today.
Reform is needed. It is not an acceptable argument against reform to say that the inconvenient provisions in the Act are ignored and that there are therefore few problems in practice. That is not the way to achieve comprehensible and workable laws which can command the respect of all who use them.
Nor would the best course be to make a few amendments to the 1968 Act. Although the effect of the Act is that hearsay evidence is generally admissible, the Act is still based on the rule that hearsay is inadmissible. The Government believe that it would be more sensible to abolish the rule itself.
The guiding principle must be that all relevant evidence should be admissible; it should then be for the court to decide what weight to give to the evidence. The concept of hearsay evidence will remain, and hearsay evidence may well be less reliable than direct evidence. But it should not be excluded altogether just because it is hearsay.
I turn now to the Bill. I should make it clear that it only applies to civil proceedings. The Law Commission is now looking at hearsay in criminal cases as well, following recommendations to that effect by the Royal Commission on Criminal Justice which the Government accepted. It will be publishing a consultation paper later this year.
It may also be helpful for your Lordships to know that there are no differences of substance between the draft Bill which was appended to the Law Commission's report and the Bill which has been introduced into your Lordships' House. One or two drafting changes have been made, for the sake of consistency or clarification, but the Government have accepted all the 18 recommendations set out in the report.
Clause 1 gives effect to the principal recommendation in the report. It abolishes the rule against the admission of hearsay in civil proceedings. Hearsay evidence which is already admissible by virtue of other statutes is not to be affected by the Bill.
Clause 2 requires parties, subject to rules of court and unless they agree otherwise, to give fair notice of their intention to adduce hearsay evidence. This will be enlarged on in rules of court, which I intend should be considerably simpler than the present rules. If a party fails to give reasonable notice, it will still be possible for him to introduce the evidence. That is in line with our object of moving away from arguments over admissibility. The court will, however, be able to take the failure to give notice into account when considering the weight to be given to the evidence or when it comes to making orders for costs.
Clause 4 is another safeguard. It provides courts with statutory guidelines to assist them to assess the weight that they should attach to hearsay evidence. They are no more than guidelines and, indeed, they do little more than set out matters which courts already consider when assessing evidence. But I believe that it will be useful to have this provision in the Bill, particularly for magistrates' courts, which have not admitted hearsay evidence to the same extent as the higher civil courts. Among the factors that I should mention are the questions of whether it would have been reasonable or practicable to have called the maker of the original statement to give evidence, whether or not the statement is first-hand hearsay and when the statement was made.
Clauses 5 to 7 largely re-enact provisions in the Civil Evidence Act 1968, dealing with the competence and credibility of the makers of statements, previous consistent and inconsistent statements of witnesses who give oral evidence, and common law rules on hearsay; for example, in public documents and records.
Clause 9 simplifies the rules on the manner of proving records of a business or a public authority. It is an important clause, partly because of what it leaves out. The complex and outmoded rules about computer evidence, which were one of the most criticised parts of the 1968 Act, have not been replaced. Again, this is not to say that computer evidence is always going to be reliable, but that no unnecessary barriers should be put in the way of adducing computer evidence in the first place; leaving it, of course, to the court to consider to what extent the evidence is useful.
Clauses 10 to 15 are general supplementary provisions, but there are several points in them to which I should draw your Lordships' attention. First, the Bill applies to all civil proceedings, before any court or tribunal, in relation to which the rules of evidence apply. It therefore applies to civil proceedings in magistrates' courts, to which the 1968 Act has not been extended. This will make for greater uniformity between civil courts. But the Bill does not apply in proceedings where the court is not bound by rules of evidence, such as small claims proceedings in county courts.
Secondly, the interpretation clause, Clause 12, gives a wide meaning to several words, such as "statement" and "document". The 1968 Act gives examples of documents, including films, tapes and photographs; the Bill simply says that a document is anything in which information of any description is recorded. I should add that in the consequential amendments in the first schedule, where an Act says at present that, for example, "document" has the same meaning as in the 1968 Act, the general provision is of a free-standing definition, like that in the Bill.
I believe that the Bill will benefit those who use the civil courts, both individuals and businesses. The National Consumer Council states that abolition of the hearsay rule will enhance public understanding of the law and therefore public confidence in it. On a more specific point, concern has been expressed by insurers that the present complex and out-of-date rules on computer evidence, which can lead to uncertainty as to the admissibility of such evidence, may discourage firms from coming to the City of London.
The Bill fits very well with current developments in the conduct of civil litigation which the Government have been pursuing and supporting, and which I hope my noble and learned friend Lord Woolf will shortly be taking further. These developments involve the admission of all relevant evidence, more openness between the parties, fewer procedural technicalities and greater procedural uniformity between courts. The Bill will, I believe, simplify the law and make it more comprehensible to all who use it. I have the greatest pleasure in commending the Bill to the House.
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