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Noble Lords: Hear, hear!

Lord Hodgson of Astley Abbotts: I shall not reveal his age because that would be indelicate.

I listened with great care to the debate on the preceding group of amendments. I am not a lawyer, so I tread carefully. I listened carefully to the noble and learned Lord, Lord Cooke, on the weight of evidence and reliability rather than technicality, and to the noble Lord, Lord Carlile of Berriew, about whether it is codification or change. I also listened carefully to the Minister, whose case was based around the importance of certainty and consistency.

In our view, the provisions of Clause 107 as presently drafted make too great a shift in the delicate balance as regards the admissibility of hearsay evidence—from one in which the evidence is generally excluded, unless an exception to the rule applies, to one in which the evidence is ordinarily admitted unless certain safeguards are met; in other words, a shift from an exclusionary hearsay rule to an inclusionary one. In this, our debates have followed those which we had earlier today and on Monday on bad character.

That having been said, we accept that there is a need for reform to the present hearsay rules as suggested by many authoritative bodies, the Runciman Royal Commission and the Auld report. Since the publication of the draft of the Bill, several bodies have expressed concern over whether the provisions have been drafted too widely.

When replying to the previous debate the Minister quoted from Justice briefing. Perhaps I may quote back to her from that briefing. Justice said that,

Our concern is therefore that the Government have initiated too extreme, too severe and too sudden a shift.

It is worth while the Committee remembering—particularly those of us who are not lawyers—that in criminal trials the defendant's liberty is at stake, so there is a need for an even greater vigilance to protect his or her rights. Relaxing the laws of evidence admissibility may accelerate court procedure in areas that are being unnecessarily bound up in red tape, but if this is at the expense of giving a defendant a trial that is unquestionably not a fair one, this cannot be an acceptable price. That point was made by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew.

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Justice has laid out in helpful briefings the background to the historic tendency for the exclusion of hearsay evidence: first, that untruthful witnesses can more easily manufacture evidence and there is no reliable way of proving otherwise; secondly, that there is unlikely to be any satisfactory or fair way of testing whether the out-of-court statement maker was mistaken, or, for that matter, was worse than mistaken and was attempting to mislead. Thirdly, the evidence referred to is not given on oath and the out-of-court statement maker may not be prepared to repeat it on oath. Fourthly, there are human rights implications that must be considered.

The rule against hearsay evidence is recognised as an aspect of the right to a fair criminal trial by Article 6.3(d) of the European Convention on Human Rights. It states that everyone charged with a criminal offence has the right,

    "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".

Obviously, if the admissibility of hearsay evidence were to be relaxed, as proposed in the Bill, such treatment of evidence would not be so closely adhered to.

Those points of clarity and the important need to bring to the court's attention the critical issues were highlighted by the noble Lord, Lord Thomas of Gresford, in the amendments that he moved. They seem to us to be sensible amendments which dot the "i"s and cross the "t"s of the Bill. While we do not believe that this clause as a whole should stand part of the Bill, we nevertheless support the amendments as they stand.

Apart from those issues, and the others which we have been discussing, we are also concerned that the Government have initiated this change without fully considering the implications of the relevant section of Lord Justice Auld's report, from which many of the changes have sprung. In paragraph 101 of chapter 11 of the report, which is entitled The Trial: Procedure and Evidence, Lord Justice Auld observes how the Law Commission considered that the "best available evidence principle"—that is the adduction of evidence based upon its weight rather than its admissibility; in other words, the use, inter alia, of hearsay evidence—is one that might suit an inquisitorial system like that in Germany but,

    "it would not work in our adversarial system where the parties, not the tribunal, are responsible for seeking out and calling evidence".

But Lord Justice Auld, having posed the question, did not give an answer to it—nor, I fear, so far have the Government. Since Lord Justice Auld saw it appropriate to include this in his report, it is intriguing that the Government chose not to make it a consideration. Perhaps if they had reflected upon this important consideration, their proposals to relax the laws regarding hearsay would be appropriately better balanced. I shall be interested to see whether the Minister can enlighten us further today when she comes to reply.

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In conclusion, I understand that the Government appreciate the sensitivities surrounding the admissibility of hearsay evidence, as the discussions in Committee in both Houses have shown. Words such as "considered", "potential" and "relevant" often appear when the Government discuss provisions on hearsay in this Bill. But these safeguards surely should not be there to weed out and identify the exceptions to hearsay that are not admissible. The emphasis should be to the contrary—safeguards should be there to identify hearsay evidence that should be admissible.

As I have said, the amendments tabled by the noble Lord, Lord Thomas of Gresford, certainly improve Clause 107. I hope he will agree that achieving an "improvement" on an issue that stands at the heart of our civil liberties is not sufficient. That is why I support the noble and learned Lord, Lord Ackner, in his opposition to the Question that in its present form Clause 107 shall stand part of the Bill.

Baroness Scotland of Asthal: I, too, add my many congratulations to the noble and learned Lord, Lord Ackner, on his birthday. It is a sad reflection that he has to spend it here with us. I hope he understands that the pleasure it gives us is considerable.

Clause 107 was ably dealt with by the noble and learned Lord, Lord Cooke, in his exposition of why change is necessary. I found that exposition enlightening and I could not possibly have expressed it as elegantly. For once, I had the advantage of listening confident in the knowledge that I did not have to respond immediately.

Clause 107 establishes a new primary rule for the admissibility of hearsay evidence in criminal trials. It allows all statements which were not made in oral evidence during the trial to be used as evidence of the facts stated within it provided that, first, the statement is admissible under the Bill or another statutory provision; secondly, that the statement is admissible under one of the common law rules preserved by the Bill; thirdly, that all the parties agree that it can go in; or, fourthly, that the court gives leave to admit the statement.

The current common law rule against the admission of hearsay evidence means that, in general, only a statement given by a witness orally in court proceedings is admissible as evidence of the facts which it contains. If evidence falls within the hearsay rule, it will be inadmissible unless an exception applies. We are changing the balance slightly.

However, the changes in the Bill will replace the current hearsay rule with a modern, comprehensive and intelligible legislative scheme. The scheme should reduce the incidence of legal argument concerning the exact boundaries of the hearsay rule and its exceptions. While it is accepted in the Bill that hearsay evidence is generally less satisfactory than first-hand oral evidence given in court, it is also recognised that there may be

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cases where that is not so and that, where hearsay evidence represents the best evidence, it should be admissible, subject to appropriate safeguards.

I was pleased that the noble and learned Lord, Lord Cooke, alighted upon the case of Kearley. That was a very clear example of why it is important that we have a change. I wish to echo what the noble and learned Lord said about the way that the courts have been reluctant to interfere in this area and re-constrain the exercise of the hearsay rule, even though it was created initially by the courts themselves. I believe that that was clearly indicated in the majority judgment given by the noble and learned Lord, Lord Bridge, in that case. Even in confirming what the law then was, he recognised that there was a real need for reform and that the ordinary man in the street would find it difficult to understand. Indeed, the noble and learned Lord, Lord Griffiths, in dissenting in that case, said:

    "In my view the criminal law of evidence should be developed along common sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence"—

your Lordships will remember the facts of that case—

    "as we are debating in this appeal would reply 'Then the law is an ass'".

We want to do all that we can to give the matter clarity. I see the attraction of what the noble and learned Lord, Lord Cooke, said in relation to simplicity and, indeed, what the noble and learned Lord the Lord Chief Justice said in his comments contained in the letter which we now have the advantage of having in the Library.

Simplicity may be attractive and the benefits of that simpler approach are obvious, but we must also consider the disadvantages. Those include the problems for practitioners in basing a scheme entirely on judicial discretion, the uncertainty surrounding the admissibility of the evidence and the particular difficulty which the lower court would have in dealing with this issue. The Law Society, for example, believes that such an approach would create hurdles in the operation of the court system, and the Crown Prosecution Service believes that such a rule would be even more difficult to understand and even less certain in its practical operation. I believe that the Bar Council also rejected it on the grounds that any new scheme must replace the present uncertainties with fewer, not more, uncertainties. That is why we have tried to structure Clause 107 with an eye to a deal of precision, which at least gives the court and practitioners the framework in an understandable, intelligible way in order to implement it.

Clause 107 also provides the court with an additional discretion to admit out-of-court statements if, despite the difficulties that there may be in challenging the statement, it is,

    "not . . . contrary to the interests of justice",

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to do so. The idea, therefore, is that the court should be able to admit an out-of-court statement where it is cogent and reliable. This also aims to ensure that defendants can present all evidence vital to their defence and receive a fair trial. Some guidance is included at subsection (2) on what factors the court should consider when deciding this issue. Those factors are intended to focus attention on whether the circumstances surrounding the making of an out-of-court statement indicate that it can be treated as reliable enough to admit the evidence, despite the fact that it will not be subject to cross-examination. That discretion would operate for both the defence and the prosecution. In summary, we believe that Clause 107 will provide a structured and simplified approach to the admissibility of hearsay evidence.

I was asked why we have crafted the Bill slightly differently from the way proposed by the Law Commission. Clause 107, like the other provisions in Chapter 2 of Part 11, draws substantially on the work of the Law Commission in its 1997 report on hearsay evidence, but it does not follow it slavishly. The commission proposed that the general rule against hearsay be maintained subject to specified exceptions. The commission also proposed that there be a residual inclusionary discretion to admit first-hand and multiple hearsay evidence.

However, the Government have since reconsidered what form the primary rule should take in the light of Sir Robin Auld's recommendation that hearsay should be generally admissible, subject to the principle of best evidence. We have concluded that there are advantages in expressing the hearsay rule in a positive way, whereby all relevant hearsay is potentially admissible unless there are good reasons for excluding it. That approach reflects our desire to allow fact-finders greater access to cogent and relevant evidence in their search for the truth. It is also consistent with the Law Commission's proposal that hearsay evidence should be admitted if the interests of justice require it. The judicial discretion referred to by the noble Lord, Lord Carlile, is preserved within this section because Clause 107 acts to avert any possible injustice by allowing a court to admit cogent and reliable hearsay statements, even if they do not fall within any of the categories of admissibility provided by the Bill. We would argue that that is a very fair and just test. With those comments, I hope that noble Lords will feel able to be content that Clause 107 should stand part of the Bill.

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