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-----

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