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
