Day 311 - 06 Dec 96 - Page 21
1 MR. RAMPTON: No, none at all. Well, it is one of those case in
2 which secondary evidence is the best evidence.
3
4 MR. JUSTICE BELL: Because the original, even supposing that it
5 is in the solicitors' office or had been kept by them, can
6 no longer be identified so that one can produce it?
7
8 MR. RAMPTON: That is right. I mean, let us assume, which is
9 reasonable to assume, and I know Mrs. Brinley-Codd will not
10 mind my saying this, that either the inquiry agents or the
11 solicitors, or both, made a bit of a pig's ear of it and
12 did not, as they should have done, attach each leaflet as
13 it was collected to the report or to the notes of the
14 interview with Mr. Carroll or Mr. Nicholson. If a witness
15 in the witness box says, "I do not know that that actual,
16 physical object was one of the copies that we collected on
17 that date, or whatever would be sent to our employers, but
18 I am certain that it was a document identical to that that
19 I collected, or that I saw being distributed", then it is
20 necessarily secondary evidence, but it is the best evidence
21 because the actual document which was collected or which
22 was handed out has been lost, effectively, for evidential
23 purposes. It may very well be that the document that
24 I showed one or other witness was the actual document, but
25 your Lordship has no basis for drawing that conclusion.
26
27 MR. JUSTICE BELL: Yes. So, at the end of the day, if you are
28 right about that, it is not a question of admissibility it
29 is a question of weight in asking whether one can be
30 confident it was actually like that?
31
32 MR. RAMPTON: Exactly, and if your Lordship thought on the
33 balance of probabilities that it was the case, that that
34 was the leaflet, not the particular object but that leaflet
35 was the one they saw being handed up and which Mr.
36 Nicholson collected from one of the demonstrators, and it
37 was that leaflet which the inquiry agents remembered from
38 their time at London Greenpeace, then that would be the end
39 of it.
40
41 MR. JUSTICE BELL: Yes. Then the next question is-----
42
43 MR. MORRIS: Can I say, we are all making legal submissions on
44 this, that secondary evidence is prima facie inadmissible.
45
46 MR. JUSTICE BELL: Yes. You have heard what Mr. Rampton said
47 about that. He said it is, in fact, the best evidence and
48 therefore not secondary evidence. Well, secondary evidence
49 in this case is the best evidence because they cannot
50 identify just which document was the one in question and
51 therefore that cannot be produced by the witness, so you
52 can deal with that if you wish in due course.
53
54 MR. RAMPTON: My Lord, if I may illustrate it so the Defendants'
55 legal advisers can grapple with it, it is a bit like
56 Mr. Carroll's photograph of the box in the
57 London Greenpeace office. That is secondary evidence.
58
59 MR. JUSTICE BELL: Yes.
60
