Day 087 - 10 Feb 95 - Page 09


     
     1        of taking something like a report of an enquiry into an
     2        incident and from that extracting what could be understood
     3        to be statements of a person, a potential witness, and then
     4        putting Civil Evidence Act Notices in the proper form on
     5        those statements of what could be taken to be a potential
     6        witness, they have said:  "Civil Evidence Act Notice on the
     7        document" and I have interpreted that as a shorthand route
     8        to the same effect.  But it does not give the document any
     9        particular status; it is just merely noticed that we would
    10        like you to treat to what appear to be statements of the
    11        maker of the report as subject to the Civil Evidence Act
    12        Notice.  Have I misunderstood or missed something there?
    13
    14   MR. RAMPTON:  My Lord, it would be my understanding too.  It
    15        works in two different ways.  Although the conclusion
    16        reached if the conditions are satisfied is the same, we
    17        believe, under section 2 of the 1968 Act one is, in fact,
    18        substituting either a hearsay witness for the primary
    19        witness of fact or else a hearsay document.  One can do it
    20        in either way.  So, that statements made in documents by
    21        people who, if called as witnesses, would have been able to
    22        give the evidence contained in the statement or to the
    23        effect conveyed by the statement, those statements then
    24        become admissible as evidence of the truth of what is said.
    25
    26   MR. JUSTICE BELL:  But it is the statement made in the document
    27        rather than the document itself?
    28
    29   MR. RAMPTON:  That is absolutely right, my Lord.  In many cases,
    30        of course, one does not worry about that because to look at
    31        the document is a convenient way of seeing what the
    32        statement is.
    33
    34   MR. JUSTICE BELL:  Absolutely, yes.
    35
    36   MR. RAMPTON:  I certainly am not disposed to be technical about
    37        it.
    38
    39   MR. JUSTICE BELL:  Could you illustrate that by, for instance,
    40        taking as an example -- I do not want you to look one up --
    41        a newspaper report which the photocopy of it is the form of
    42        document.  In it, it says:  "Mr. Jones said that he ate
    43        something which contained something else".  If Mr. Morris
    44        said:  "We are putting a Civil Evidence Act Notice on that
    45        press cutting", I would interpret that as meaning not that
    46        the press cutting itself has any status, but that the Civil
    47        Evidence Act Notice relates to what Mr. Jones said ---
    48
    49   MR. RAMPTON:  That is absolutely right.
    50 
    51   MR. JUSTICE BELL:  -- his statement. 
    52 
    53   MR. RAMPTON:  If I may say so respectfully, that is an extremely
    54        good example of where the distinction might matter, because
    55        whereas if Mr. Jones is dead or beyond the seas or I do not
    56        serve a counter notice, what Mr. Jones is reported as
    57        having said becomes admissible under section 2.  For
    58        example, the headline writers' gloss, which might be highly
    59        defamatory and much more defamatory (and often is) than
    60        what Mr. Jones is reported as having said or, indeed, the

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