New Clause 38

– in a Public Bill Committee at 9:00 pm on 10th March 2009.

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Abolition of rule in Hollington v. Hewthorn

‘Notwithstanding any rule of common law to the contrary, a finding of fact in legal proceedings before any court or tribunal is admissible as evidence of the existence of that fact in legal proceedings before any other court or tribunal.’.—(David Howarth.)

Brought up, and read the First time.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I beg to move, That the clause be read a Second time.

The new clause was suggested to me by Professor John Spencer, and since his name has been taken in vain so many times in the Committee, although not quite as many times as that of David Thomas, I thought it only fair that it be given an airing.

The rule in Hollington v. Hewthorn is a nuisance that keeps cropping up from time to time in the courts and it usually has to be dealt with in a fairly ad hoc way. Hollington v. Hewthorn was a case in 1943 that purportedly  laid down the rule that a finding of fact by a court in one case was not admissible in evidence, let alone conclusive proof of the existence of that fact in another case in which either or both the parties were different. It is rather extraordinary that this rule came into existence, but it has caused trouble ever since. I should stress that the rule says that the previous case is not even admissible as evidence about the fact. It is nothing to do with proving the fact. It cannot even be mentioned as evidence.

Section 73 of the Police and Criminal Evidence Act 1984 made a major exception to the rule by creating a rebuttable presumption that the person convicted of an offence actually committed it. It did not abolish the rule; it merely made an exception to it in respect of convictions imposed by UK courts. At that point it seemed that the Hollington v. Hewthorn rule would survive as regards foreign convictions. Then a case called Kordasinski came to the Court of Appeal and the court managed to get round Hollington v. Hewthorn by claiming that they had been abolished to some extent by section 99 of the Criminal Justice Act 2003, and so in that particular case evidence of a foreign conviction was admitted as evidence of the underlying facts of that case. Kordasinski was a bit of a strained interpretation, and the Court of Appeal followed that up with another strained interpretation on the other issue of whether one could use findings of fact in civil cases in subsequent criminal proceedings.

In a case called Hogart in 2007 this issue arose, where the Court of Appeal again got around Hollington v. Hewthorn by claiming that in that particular case it was displaced by section 117 of the Criminal Justice Act 2003, which is about the hearsay rule, and it was able to say that the evidence was admissible because it came within the category of a document. The rule is generally reviled, and whenever the matter comes up in a new context the Court of Appeal tries to get round it, but the arguments by which it does that are strained and not logical. They are simply a means to an end.

Many people think the simplest thing to do is to abolish the rule formally by statute. The arguments against doing so are, first, that it is not necessary because the rule has already been abolished, but the trouble is that it has not been abolished. Parts of it have been abolished, but parts of it remain, and it is never entirely clear where it might pop up next to cause yet more trouble. Secondly, one could say that although it has not been abolished the courts usually manage to get round it when it comes up; but that is not always so. In Conlon and Another v. Simms last year that did not happen, and the rule was said to prevail. When people manage to get round the rule, they do so only after going to the Court of Appeal, which is time-consuming and expensive. The best thing is to avoid difficulty in future, and to accept the new clause saying that the rule is abolished.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice 9:15 pm, 10th March 2009

I agree with some of what the hon. Gentleman says, but I would have to scurry back to the texts to see whether I agree with all that he says. I certainly agree that Hollington v. Hewthorn is a Court of Appeal case from 1943, which established a rule that previous judgments and verdicts are inadmissible as evidence of a fact on which they are based, at least as far as proceedings involving different parties are concerned.

As far as previous convictions are concerned, the rule was abolished for civil proceedings by section 11 of the Civil Evidence Act 1968 and for criminal proceedings by sections 74 and 75 of the Police and Criminal Evidence Act 1984. Clause 124 and schedule 15 of the Bill extend section 74 of the 1984 Act to allow previous convictions in other member states to be admitted for this purpose. I am not entirely convinced that new clause 38 would not cause at least as many problems as the hon. Gentleman seeks to avoid, because the wording would take the provision considerably further and allow any court or tribunal to accept as a fact anything that has been accepted as a fact in any previous proceedings, whatever they were.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Fortunately, Professor Spencer anticipated that argument. The point is that new clause 13 does not say that the court “may accept as a fact”; it simply says that it “may accept as admissible in evidence”. It does not have to accept the fact; it can just take it into account.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

There are some difficulties in expecting or telling a court that it can accept a finding on a factual matter in civil proceedings in any country, whether in the UK or elsewhere in Europe or the world, and that that may be admissible as evidence of that fact in criminal proceedings.

The new clause goes a long way, and a fundamental feature of the law in this country is that not all evidence is admissible. The new clause would create a significant and anomalous exception to that principle, and might cause more problems than the ones that the hon. Gentleman seeks to get rid of. I am not convinced that we should accept it, but I am happy to ask departmental lawyers to see whether they agree with the points that are being made. I am not in a position to accept such a new clause at the moment, and I believe that it would cause more problems than it would solve.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

All I can say is that the debate has shown yet again not only how clear thinking Professor Spencer is, but how prophetic he is about ministerial replies to debates in parliamentary Committees.

I am glad that the Minister has undertaken to go away and think about this issue some more. I do not accept what she says about the consequences. The consequences are merely to abolish the rule in Hollington v. Hewthorn, which has been a nonsensical rule and causes more trouble than it is worth. However, on the basis that she has undertaken to think about this issue a little more and perhaps will read the textbooks, which, as far as I can tell, have mainly been written by Professor Spencer himself, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Ordered,

That certain written evidence already reported to the House be appended to the proceedings of the Committee.—(Bridget Prentice.)

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

On a point of order, Mr. Cook. I just wanted to make a point of order in relation to the completion of the Committee stage of the Bill. First, I want to say on behalf of the Committee that we are indebted to you, Mr. Cook, and to your co-Chair,  Mr. Gale, for the patient and expeditious way in which you have ensured that the Bill has had a fair hearing and that proper scrutiny of a very large and disparate Bill has taken place. It is certainly thanks to your leadership that we were able to scrutinise it properly, so much so that, as the Committee has seen, we have already made major changes, not least the withdrawal of clause 152.

I also want to add our thanks to the Clerks and the Hansard writers. I thank the former for their wise counsel and the latter for reminding us, and the press, that they are the guardians of accuracy, and yet they are far speedier than anyone else at making such a report widely available.

I also thank the officials. There are probably more teams of officials on this Bill than I have ever come across; there are probably more teams of officials than there are teams in the Champions League at the moment, possibly in all European competitions. We are grateful to them for the comprehensive notes that they have provided. Also, of course, on behalf of my fellow Minister, I offer our thanks to our private offices, who have given us excellent support. I also thank the Bill manager, who I think has been the only official who has stayed on the field while others were being substituted at a rate of knots. That is a feat worthy of a medal in itself.

I also want to thank all members of the Committee, from all parties, who have participated in this debate in good spirit, with constructive and very knowledgeable views and interventions. I think that it is the first time for a long time that I have been on a Committee in which every single member has made a contribution at some point, apart perhaps from the Scottish National party MP, the hon. Member for Moray, who has not turned up yet.

In particular, I would like to thank my hon. Friend the Member for Wrexham, who has gained a few grey hairs in the past few weeks. However, he has firmly but gently ensured that we have kept to a reasonable timetable, with, of course, the support of the hon. Member for Rugby and Kenilworth. If the Whips Office had kept up the tradition that was started when I was in the Whips Office, my hon. Friend would be Whip of the week, as a result of his efforts on this Bill.

Finally, I want to pay special thanks to the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston. She is not known to take prisoners, but she has steered us through some of the very detailed, technical and often controversial parts of the Bill, with her usual professionalism and deep knowledge of her area of work. Our thanks go to our Parliamentary Private Secretary, who has been here handing us notes as and when it has been needed.

As a result, we have ended up with a better Bill than the one we started with and that is as it should be. It is a recognition of the importance and strength of scrutiny, and that also is as it should be. We now have a Bill that, although it will change in the course of its progress through the House and elsewhere, puts witnesses, victims and the bereaved at the heart of the judicial system, and that too is as it should be.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Further to that point of order, Mr. Cook. I do not want to upset you, but merely to thank you for your chairmanship of the Committee, along with Mr. Gale. It has been a pleasure to serve with you.

I cannot say that I think the Bill is quite so splendid as the Minister claims it is. She said candidly that it is a large and disparate Bill, as I dare say it will remain. I wonder whether it will be implemented before an eight-year gap.

I join her in thanking the staff of the House, particularly from the Public Bill Office under the leadership, in this Committee, of Mr. Alan Sandall. I am grateful to him and his colleagues for the help and assistance that we get from them in the absence of civil service officials, whom the Minister properly thanked. I also thank the police officers and Doorkeepers who have helped us in the past few weeks.

I particularly thank my hon. Friends the Members for North-West Norfolk and for Rugby and Kenilworth, who have had to listen to my feeble remarks and even feebler jokes from time to time. I also thank my hon. Friends the Members for North Wiltshire and for Daventry for their contributions to the Committee.

This has been a pretty happy Committee, at least in the relations that we have had in the room and between ourselves as individuals. I hope that the Bill is given a thorough grilling when it gets to the other place and I look forward to considering Lords amendments in due course.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Further to that point of order, Mr. Cook. If I could try your patience for a minute, I should like to add my thanks to you and Mr. Gale for your extraordinary patience throughout the Committee’s proceedings, which seem to have gone on for a very long time. It has been very exhausting for all concerned.

I also thank the Clerks, Hansard and other House staff. I especially thank my hon. Friend the Member for Cardiff, Central, who has taken on major parts of the Bill in what is, I believe, her first major Bill Committee. She did so with great aplomb.

There have been major changes as a result of the Committee. This stage of the Bill’s passage has been unusually effective, even if it has been very long. The removal of clause 152 is a major change and a major achievement. The undertakings to make changes to the jurors and coroners part of the Bill are equally important. I hope that the Government take some time to think about what they will do next with the Bill, and that they do not rush into the next stages too quickly. If they do, they might find the Bill going rather more slowly through the House of Lords than otherwise.

Photo of Frank Cook Frank Cook Labour, Stockton North

Points of order require a ruling. In the nearly 27 years that I have been in the House, that is the lengthiest point of order I have ever heard, and probably the most spurious. Nevertheless, I thank you for your kind remarks on behalf of myself and my co-Chairman.

Bill, as amended, to be reported.

Committee rose.