Day 311 - 06 Dec 96 - Page 22
1 MR. RAMPTON: But we have not got the box in court.
2
3 MR. JUSTICE BELL: At the moment I think what you are saying is
4 this: since the witness cannot say 'That piece of paper
5 there is the actual piece of paper which I took', that is
6 primary evidence and its contents cannot be given. The
7 witness could then, in those circumstances, go on to say
8 that the leaflet was one which had this cartoon on the
9 front, if he remembered that it had no script apart from
10 headlines, and so on, whether or not he could say that, one
11 can short-circuit the whole business by asking him to look
12 at a copy and get his evidence on whether it was the same
13 as that or not. I understand your argument.
14
15 MR. RAMPTON: I was only using the cardboard box as an
16 illustration. There are three stages to that illustration;
17 the cardboard box could, in certain circumstances, have
18 been presented in court as an object for your Lordship to
19 see with leaflets inside it; Mr. Clare could have said, "I
20 remember the cardboard box, I remember the writing on it, I
21 remember seeing the leaflet in it." The fact is, he did
22 not go the whole way because he did not have the box; he
23 went one stage further -- still secondary evidence -- he
24 took a photograph.
25
26 MR. JUSTICE BELL: If you are right, there is no difference
27 between a situation where the witness has seen a document,
28 he says, but not actually, physically taken a copy of it?
29
30 MR. RAMPTON: That is right.
31
32 MR. JUSTICE BELL: In which case there is not a copy to produce
33 -- I get away from copy -- in which case he cannot produce
34 the leaflet which he saw, and the situation where he has
35 taken a copy of the leaflet, of a leaflet, but not kept it,
36 nor has it been marked so that he can later identify it, so
37 he cannot produce the original then. In either case, you
38 say he is entitled either to describe verbally what it was
39 or, which is another way of doing that, be asked to look at
40 a piece of paper which it is not suggested is the actual
41 piece of paper and give evidence as to whether it had the
42 same appearance as that or not?
43
44 MR. RAMPTON: Of course, my Lord, that is entirely right.
45
46 MR. JUSTICE BELL: Yes. Moving on, and this is really from
47 page 13 onwards.
48
49 MR. RAMPTON: Yes.
50
51 MR. JUSTICE BELL: It is inquiry agents' notes and agency
52 reports. I understand the argument that there is no
53 difficulty about the parts of the notes to which the
54 inquiry agents who made them refer. Whether or not they
55 remember anything at all at the time of giving evidence,
56 you say they were saying, in effect,
57 "I made my notes at the time, or not so very long
58 afterwards, I did my best to record what I thought to be
59 relevant accurately, so I think what is in the notes is
60 true." That is, in fact-----
