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Lord Carlile of Berriew: It is with trepidation that I follow the noble and learned Lord, Lord Cooke. My father always taught me of the importance of bewaring of the mythical Greeks bearing gifts. When one sees the Lords of Appeal in Ordinary shouldering blame, one should guard carefully. He need take no blame having played such a distinguished part himself in whatever reform of the law is possible within the judicial process in this House.

I follow with trepidation because to an extent I agree with the noble and learned Lord, Lord Cooke, and to an extent I disagree with him in supporting my noble friend Lord Thomas. I agree with the noble and learned Lord in what I understand to be a fundamental question in his speech as to what this provision really amounts to. I ask the Minister to tell the Committee whether Clause 107 and the following clauses are codification or change.

If those clauses are intended to be codification, they fail. I give an example of what is not included in the Bill. It is the inclusion of the regime—which will be familiar to the noble Baroness—set out in Sections 23 to 26 of the Criminal Justice Act 1988 dealing with the admissibility of statements contained in documents—a matter which is litigated daily in many courts, and usually these days without much difficulty in the light of useful guidance given by higher courts.

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I perused the list of proposed amendments to the Bill and I see no attempt to create a single regime for hearsay evidence. I believe that the noble and learned Lord, Lord Cooke, and I would agree that it is desirable that there should be a single body of legislation that deals with hearsay evidence, whether it be of an oral or written kind, so that judges can make that decision of which the noble and learned Lord, Lord Woolf, spoke when devising his proposed rule. I ask the Government why they have not gone down the road recommended by the noble and learned Lord, Lord Woolf, of trying to produce a simple, single body of law to deal with hearsay evidence?

I also ask the Minister to explain to the House what difference the Government expect these provisions to make in practical terms. Although I agree with my noble friend Lord Thomas as regards the possible effect of the provisions, I have a suspicion that in reality they will have very little effect. Is that the Government's intention? If the expectation and intention of the Government is that there should be far more hearsay evidence admitted, it presents the risk of real dangers of miscarriage of justice, as outlined by my noble friend Lord Thomas of Gresford. I think, for example, of a range of cases of which I, my noble friend and, indeed, the Minister have great experience; that is, allegations of historic child abuse in which there are always protestations that those who would be called to give evidence are unfit so to do. There are many cases in which parts of indictments are dropped because potential witnesses are judged by the prosecution to be unable to give evidence because of reasons connected with their mental health.

If it is the intention or expectation of the Government that people falling into that category should have their statements read as part of the prosecution case on a regular basis, I for one, with many years of experience of those cases, would have grave misgivings. There would arise from those circumstances real risks of improper convictions based on evidence that stands no chance of being tested. If that is not an example of the range of evidence which the Government have in mind, I should like to know what is within their expected range. Regarding this clause and what follows, my feeling is that the Government owe us more of an explanation than is contained in the Notes on Clauses to the Bill as regards what they expect to happen in real courts and in real cases.

At the end of the day one is driven back to the reminder which the noble and learned Lord gave us of the view of the noble and learned Lord, Lord Woolf. Why do we not set out some very basic and far simpler rules and leave it to the judges to decide not what would be contrary to the interests of justice, as is set out in Clause 107(1)(d), but what is in the interests of justice—a positive test which is well understood by the courts?

3.15 p.m.

Lord Campbell of Alloway: Being interested in the hearsay rule I wholly support the idea that has just been canvassed that there should be a single regime.

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May I ask one question about this? If you look at Clause 107, you have to ask whether it substantially alters extant law and, if so, in what relevant effect. The other question is this: if it does in any relevant respect, is the position that somebody could be acquitted under extant law and convicted on other and different evidence admitted under Clause 107? I am afraid that I put it very simply but I hope that the point has been made.

Lord Davies of Oldham: In responding to the amendment with an absolute dearth of legal expertise, I was already quaking before the noble Lord, Lord Thomas, suggested that we might learn lessons from the Hutton Inquiry. I assure him that I have absolutely no intention whatever of following him down that particular track. We have quite enough to deal with regarding the Bill without being diverted into other significant and challenging issues.

I wrestled with the issue of how the Government should respond. The noble and learned Lord, Lord Cooke, rode to my assistance like a knight on a white charger when he accurately identified—rather more precisely than I am able to do—just why the Government intend to follow the course of action proposed with regard to the clause that we are discussing and why we consider that the amendments to it should be withdrawn.

I emphasise that the issue of the admissibility of hearsay evidence in criminal trials is a very important one. This chapter provides a comprehensive statutory scheme to replace the current complicated and inconsistent rules. The noble Lords, Lord Carlile of Berriew and Lord Campbell of Alloway, asked what was happening in this regard. We are repealing certain provisions and implementing in Clauses 109 and 110 improvements recommended by the Law Commission. The intention of this part of the Bill is to implement a scheme which is based very closely—as the noble and learned Lord, Lord Cooke, identified—on the recommendations of the Law Commission which gave these issues very careful consideration.

The commission spent three years examining how the law operates in practice and in developing and consulting upon its recommendations for change. The core of the commission's proposed scheme is that there should be some rules which allow for automatic admissibility of evidence (where judicial discretion plays no part) as well as an inclusionary discretion to ensure that the interests of justice are served. The scheme set out in the Bill adopts this approach.

The noble and learned Lord, Lord Cooke, elegantly indicated that we might take guidance from the comments of the noble and learned Lord, Lord Woolf, with regard to a simple approach to the matter. Therefore, it may be a challenge to this part of the Bill that total simplicity has not been achieved. However, it is certainly the intention to give effect to the Law Commission's proposals. There is no doubt at all that the amount contained in the Bill is very limited and is not, I would contend, unduly complex.

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Let me also say at the outset—

Lord Campbell of Alloway: Could I ask the noble Lord to get right down to the nitty-gritty of this? The Law Commission's proposals seek to alter extant law. If you accept that, you get the position—of which I have a horror—of a man who is acquitted under extant law and then under a new law where the evidence is admitted is convicted on retrial. That is the situation which arises. Ought not some safeguard to be inserted for that?

Lord Davies of Oldham: I think that there are safeguards against the position that arises from the noble Lord's anxieties. He will recognise that we seek to introduce a Bill that, in future, will create broad rules that are as straightforward as we can make them for the admissibility of the evidence. In doing so, we are following as closely as we can the recommendations of the Law Commission.

The group includes several amendments tabled by the noble Lord, Lord Dholakia, and spoken to by the noble Lord, Lord Thomas of Gresford, that require the court to satisfy itself that the interests of justice are met before any out-of-court statement can be admitted as evidence under this chapter or any other statutory provision. Amendment No. 154 is consequential and would bring admissibility of statements involving frightened witnesses within the same discretion. That is an important practical issue as well as one of principle, because we must achieve the right balance between consistency and discretion.

There are two broad categories where statements would be automatically admissible in Chapter 2. The first is where the maker of the statement is unavailable for a legitimate reason—for example, where the witness is ill, has died, gone abroad or disappeared, providing that reasonable steps have been taken to find them—and, secondly, business documents will be automatically admissible, unless their reliability is doubtful.

The Criminal Justice Act 1988 already makes those various categories potentially admissible, subject to leave and discretion provisions, but the appearance of certainty is illusory. In practice, most applications must be judged. That is a cause of concern, as the Law Commission found a lack of consistency in the way in which judges exercise their discretion under the Act. Some—perhaps those with a traditional hostility to hearsay—regularly exercise their discretion to prevent hearsay statements being admitted.

The amendments would emasculate this part of the Bill. They would undermine one of the most important benefits in reforming hearsay in criminal cases, namely that there should be much greater certainty that out-of-court statements will be admitted as evidence. Practitioners are calling for more certainty in the majority of cases, not less.

It is also important that the rules of evidence should lead to consistent and fair outcomes. The Law Commission has found that they do not in the case of

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hearsay. Different judges reach different conclusions about whether statements should go in. As the commission said in its consultation paper on the issue,


    "the problem of discretion and arbitrary justice is not an imaginary one. Whether a prosecution is pursued may depend on the admissibility of evidence, and the question of admissibility may depend on the judge's discretion".

In the light of those findings, the Law Commission concluded that, for the relevant categories, the need to obtain leave is a lengthy and unnecessary procedural safeguard. We agree. If the rules of admissibility are reliant entirely on judicial discretion, as the amendments propose, there can be no certainty for the parties concerned. That is of particular concern given the commission's worrying findings that judges were being inconsistent in the exercise of their discretion under the Act.


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