Day 087 - 10 Feb 95 - Page 18
1 I am not saying anything about the merits of the Civil
2 Evidence Act in relation to this American document at all.
3 One would have, first, to decide whether this was a record
4 for the purposes of section 4. Put it another way, one
5 would have first to decide whether it is a section 2 or a
6 section 4 case. In other words, to the extent that it went
7 beyond first-hand hearsay, one asks these questions, in my
8 submission -- I am not going to try to answer them at all
9 -- first of all: Is it a record for the purpose of
10 section 4? If it is, were the people who wrote it acting
11 under a duty in writing it?
12
13 Those, in my submission, are the questions your Lordship
14 would have to answer in deciding whether to admit this
15 document and, if so, whether to admit the whole of it or
16 only some part of it.
17
18 MS. STEEL: I wanted to raise a different point which is that it
19 appears to me that this American document is, in effect, a
20 statement in itself. What I wanted guidance on was what
21 parts of it would not appear to be a statement. I can
22 understand the difference in a press report where you have
23 comment and what-have-you, but this is like as if an expert
24 had done a report and this is their report, and in that
25 case an expert's report is allowed to stand. That is why
26 I do not understand this point.
27
28 MR. JUSTICE BELL: You may be right. I have not even read
29 this. It is completely new to me, you see.
30
31 MS. STEEL: No, but that was the point I was trying to make in
32 the first place but got completely sidetracked.
33
34 MR. JUSTICE BELL: I will not read it all through now. But what
35 you want to do is put, as it were, a Civil Evidence Act
36 Notice on the statement. You might just as well take
37 Dr. Riley made in the New England Journal of Medicine,
38 24th March 1983.
39
40 MS. STEEL: Where is that, sorry? That is the whole thing?
41
42 MR. JUSTICE BELL: Yes.
43
44 MS. STEEL: We got this from Mr. Mitchell Cohen, whose name is
45 on the front. He is one of the authors of the report.
46
47 MR. JUSTICE BELL: All right. I mean, I was only suggesting the
48 person there. By all means -- I think I was told that in
49 America the most significant author comes last or
50 something.
51
52 MR. RAMPTON: My Lord, it would have to be a statement by all
53 people whose names appear at the beginning of it. It is a
54 blunderbuss statement. Whether it is an expert's statement
55 or not is another question, and what conditions then apply
56 I have not thought about. But what is quite clear is that
57 it is not first-hand hearsay. If one looks at the end of
58 the report, in the left-hand column in small writing, one
59 sees that a good deal of the information contained in this
60 article (which is probably the best way of describing it at
