I beg to move amendment No. 375, in

clause 99, page 58, line 17, at end add—

'(4) A statement of opinion is only admissible if the opinion would have been admissible as oral evidence in the proceedings.'.

This very specific amendment is intended to clarify the balance between that which is adduced as hearsay evidence and that which would be admissible as oral evidence in proceedings. The key point here is in the matter of opinion, rather than fact. Clause 99(2) says that a statement is

''any representation of fact or opinion'',

but, as I understand it, opinion evidence is not generally admissible unless it is given by a professional or expert on the basis of his or her professional expertise. The wording of subsection (2) appears to allow a statement to include an opinion that is not so qualified. That seems an odd juxtaposition. A person who appeared in court would not be entitled to give that opinion, and it would not be admissible as evidence; but if that opinion was related to another person and then adduced as hearsay evidence in court, it would be given appropriate weight within the court's proceedings. I do not believe that that is the intention, but it appears to be what the Bill says at the moment. I should be most grateful if the Minister would explain what is intended. Is there a change in the admissibility of direct, primary evidence, or will the Bill introduce an unexpected expansion and a new anomaly?

I am grateful to the hon. Gentleman for tabling this probing amendment. I assure the Committee that neither chapter 2 nor anything else in the Bill is intended to affect the common law rule in criminal trials that prevents witnesses from expressing their opinions on what might have happened in the case. Under the rule, the opinion of witnesses is inadmissible unless there is an exception, such as when the court needs expert help in deciding an issue. Most commentators take the view that that rule is a sensible precaution. I am not aware of any problems with its operation. The rule gives the courts sufficient flexibility to allow ordinary witnesses to express their opinions, when it is genuinely impossible to expect them to tell their story in any other way. I assure the hon. Gentleman that nothing in the Bill will alter that position. If an out-of-court statement contains opinion evidence, that part of the statement will not be admissible—

So why is it there?

It is important that there be clarity in the Bill. We have already heard some arguments this morning about clarity and are endeavouring to be clear about our position on the matter. I hope that that gives sufficient clarity to the hon. Gentleman.

To repeat the point, if an out-of-court statement contains opinion evidence, that part of the statement will not be admissible unless it falls within one of the exceptions to the general rule against opinion

evidence. To be certain that there will be no unintended consequences, clause 98(3) states:

''Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.''

I hope that that gives hon. Members sufficient clarification, and that the hon. Member for Somerton and Frome will withdraw his amendment.

The Minister and I—and the hon. Member for Somerton and Frome, I think—are on the same wavelength. However, in the light of the Minister's answer, I find the wording of clause 99 odd. The clause does not define what a statement is. As a generality, I am quite prepared to accept that in the court context, a statement is any representation of fact or opinion. One can have the statement of an expert and the statement of an individual. However, subsection (1) says:

''In this Chapter references to a statement or to a matter stated are to be read as follows.''

Subsection (2) describes a statement as a

''representation of fact or opinion'',

which, in light of what the Minister said in his helpful comments, is exactly what a statement in the context in question cannot be. Why therefore is that included?

Let me, if I may, Mr. Illsley, spell the matter out at greater length. As well as to produce clarity, one of the key reasons for the provisions is to deal with precisely those cases that lawyers know as cases of implied assertion. As I have been invited on to this ground, I shall spell out a little more what we intend with the clause. That is not strictly to the point of the amendment, although I hope that, with your indulgence, Mr. Illsley, we may—

On a point of order, Mr. Illsley. May I take it therefore that I am not giving way to the Minister, but that he is going to speak further and that I can speak after him?

If the Minister is intervening on the hon. Member for Beaconsfield, his intervention should be short and he should seek another opportunity to expand on his point.

I am happy to abide by your ruling, Mr. Illsley. If I am given sufficient opportunity I shall return to the matter once the hon. Member for Beaconsfield has made his point.

I shall shortly sit down. I think that the Minister is coming to the nub of the issue. I understand what he says about implied assertion. Instances can arise in court in which laymen give expressions of opinion in areas in which they are not normally admitted. That raises a difficulty. Should such things be admitted as part of the hearsay rules? I shall be interested to hear what the Minister has to say.

I assume that I may now speak at greater length, because this is a complex area that has caused difficulty. It is important, now that we have moved to this matter, which is not strictly to do with the amendment, to spell out why the clause has been included. It defines the type of statement that will be covered by the new scheme. According to subsection (3), the rule will apply only if it is the purpose of the

person making the statement to cause someone to believe that the matter stated is true, or to act on the basis that it is true.

The common law rule is much wider. It excludes statements or conduct from which a relevant fact can be inferred although the maker did not intend to communicate that fact. The rule has, as hon. Members will know, caused a lot of confusion and occasional injustice in borderline cases, known to the legal profession as implied assertions. An example might be when a child says the words, ''Hello, Daddy.'' The child is not asserting ''I am speaking to my father,'' but a listener would be able to infer that by implication. The statement contains an implied assertion that the child is speaking to his or her father. In the case of Kearley, a majority of the House of Lords held that the hearsay rule extends to such implied assertions. That means that if a statement could be said to contain an implied assertion, then it was being proffered to prove the truth of such an implied assertion and that express statement would be inadmissible hearsay.

Clause 99 is taken from the Law Commission's draft Bill on hearsay. It is intended to address the problems that have arisen from cases of implied assertion, such as the exclusion of much cogent and reliable evidence because it could be argued that all human utterances and acts contain some implied assertions. It seems illogical to exclude all such statements during a criminal trial. Additionally, it is often difficult to distinguish an implied assertion from direct evidence. The new definition in clause 99 reflects the Law Commission's recommendation that the hearsay rule should not prevent the admission of evidence if the maker did not intend by word or conduct to communicate the information. That is simply bringing the law into line with other jurisdictions. In Scotland, as in many common law jurisdictions, such statements have never been excluded under the rules of evidence. We are not aware that any problems have arisen as a result of—

That is very helpful. It fully explains the purpose of clause 99(3). However, it does not explain the representation of fact or opinion. I hoped that the Minister would give an example of a case in which it might be thought proper for an expression of opinion to be admitted in that form. He has not done so, and that makes me wonder whether I was being too kind to him. I cannot think of any reason why the words ''or opinion'' should stay in.

We are trying to produce greater clarity in the law. What I said in relation to the amendment applies to the clause itself; we want to show clearly our intention. It is important to put opinion in, but to be clear about the context in which it is being used. As I explained to the hon. Member for Somerton and Frome, nothing here or in the rest of the Bill is intended to affect the common law rule that, in criminal trials, prevents witnesses from expressing their opinion about what has happened, or might have happened, except when it falls within a recognised exception—such as expert help.

The Minister is getting there at the moment.

I am not sure whether that is an expression of approbation or whether the hon. Gentleman wishes to intervene. He is just agreeing? That is a delightful state to be in.

I am still struggling to understand the circumstances in which opinion is to be included, unless we are talking about dead experts. Are we?

No.

I can respond to that by giving one example. If an expert gives an opinion in a written statement, that is hearsay as well as opinion. That is why we have to consider both things together. We are introducing the clause to deal with difficulties that have arisen in the past, but we also accept that certain categories—

Is the Minister saying that the inclusion of the words ''or opinion'' is designed to cover those borderline examples in which a layman may properly give an expression of opinion to be accepted by the court without straying into the realm of the expert? I think that that is what the Minister means. That is fine, as long as we ensure that he does not stray into the realm of the expert. Perhaps we do that in clause 98(3).

The answer is yes. The hon. Gentleman is right and has expressed it extremely elegantly. I understand what has given rise to the amendments, and I am glad that I have been able to bring clarity to the matter. We seem to be in agreement so I hope that, having discussed both the substantive clause and the amendment, the hon. Gentlemen will feel able to withdraw the amendment.

Yes, I do now understand what this is about. When I first read it I was rather startled. However, I accept that there are many circumstances in which witnesses might put in statements expressions of fact that come to the point of opinion. As an example: ''I went out of my house. It was very cold and I thought that it was below freezing.'' That sort of opinion is expressed all the time, and usually causes no difficulty. The rather curious phraseology of the clause is intended to deal with that. If that is the case, then I am satisfied by the Minister's reply. However, he will understand why it reads oddly in the context of hearsay evidence. It appears, unless it is read in conjunction with clause 98(3), to give a permission to allow opinion evidence in by hearsay. I leave it to the Minister to decide before Report whether further qualification should be introduced so that it specifies that it is not evidence that only an expert could give, or whether he feels that it is sufficiently well drafted at present.

I am grateful to the Minister. He has understood the amendment's intention, and has said explicitly that the rules of evidence will apply in the same way to hearsay evidence and to oral evidence. A sense of ambiguity remains at the back of my mind, and that may be unhelpful. The Minister may wish to look at the wording again.

You were very generous, Mr. Illsley, to allow a brief discussion of clause 99(3) on implied assertion, which the Minister mentioned. That is helpful to our understanding of what is intended. I wonder whether

the Minister might intervene to make it plain that a change to the rules of evidence will not be introduced that applies to hearsay evidence but not to oral evidence. It would not be helpful to introduce a new anomaly.

I am happy to confirm that. I hope that that reassures the hon. Gentleman.

I am grateful to the Minister. He has clarified matters considerably, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 99 ordered to stand part of the Bill.