Admissibility and the Whole Truth

3. Forens. Sci. Sac.

(1980), 20, 8 1

Received 8 November 1979

Admissibility and the Whole Truth R. REID Sherzff Principal's Chambers, Glasgow, Scotland, GI I S Y .

This paper attempts to explain to non-lawyers the reasons lying behind the exclusion by courts of law in certain circumstances, of evidence relevant to issues under consideration. After an introduction outlining the philosophical and historical approach of courts in Scotland and England to the ascertainment of fact and instancing some practical dzficulties in that matter, the categories of confidentiality, evidence illegally or improperly obtained, and the best evidence rule are considered and conclusions drawn about the dzfferences between legal and other investigations into matters of fact. ( T h i s paper was presented at the Autumn Symposium of the Forensic Science Society on Science, Truth and Evidence, held at the School of Pharmacy, Brunswick Square, London on 2-3 November, 1979).

Introduction When I was asked to speak at this symposium I did not think that I was much likely to be restricted by the chosen subject. Something could surely be fitted in under the title of "Science, Truth and Evidence." When I came to write this paper I found I had been optimistic. Of the natural sciences I knew little and what I knew I would not dare to parade in this company. I knew something of the law of evidence but that subject is not, except to some lawyers, one of absorbing interest on its own so it became necessary to attach it to something more attractive; and all that was left was truth. Now, the most perceptive thing which has been said about lawyers and the truth is that they are not interested in it-only in points of view. Legal philosophers have investigated in depth the concepts used by lawyers, but practical lawyers-and I have no claim to be anything else-tend to be deeply distrustful of their conclusions. Let me give an example. Few ideas have given more trouble to philosophers and lawyers than the idea of causation. I t is an idea lawyers have to use every day. They have to ask themselves "Who caused the accident" or "Did the accident cause the damage" or "Did the poison cause the death?" Philosophers have also thought long about the subject. Indeed, I understand that there has been a suspicion in philosophical circles since the time of David Hume that the statement "A caused By'has no validity except as a generalisation from observations of A and B but lawyers and scientists long ago decided to ignore this too-clever attack on the foundation of their respective subjects. I n applying the concept of causation. lawyers have frequently found themselves in logical difficulties but have firmly rejected assistance from the metaphysicians. I n dealing with the idea of contributory negligence, Lord Atkins said "I find it impossible to divorce any theory of contributory negligence from the concept of causation. I t is negligence which contributes to the injury . . . and whether you ask whose negligence was responsible for the injury or from whose negligence did the injury result or adopt any other phrase you please, you must in the ultimate analysis be asking who "caused" the injury; and you must not be deterred because the word "caused" has in philosophy given rise to embarrassments which in this connection should not affect the judgeV.l I n a later case, Lord Wright had to consider the argument that the last cause in a chain of causes should be treated as being the cause of an accident and preferred the 'Caswell v Powell Duffryn Associated Collieries Ltd.. 1940 Appeal Cases 152, 165.

view that it was the most important cause, the one "predominant in efficiency in bringing about the accident". He commented "The choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards. Causation is to be understood as the man in the street and not as either the scientist or the metaphysician would understand it".2 And in a later case still Viscount Simonds talked about the courts having been "at times in grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible j a r g ~ n " .That ~ is strong language indeed from the judge in the House of Lords. I t is the sort of language which judges usually reserve for the less familiar views of psychologists and sociologists. These are the views of some of the greatest English judges of this century and they are plainly correct, if one may say so with the greatest respect. Law is a practical business aimed at providing acceptable answers to real disputes. No one wants to have this action decided upon the basis of some metaphysical subtlety. So when lawyers speak about ascertaining the whole truth they are embarked upon nothing more pretentious than determining the facts relevant to the matter in hand. When witnesses are required to tell "the whole truth" all that is required of them is to state the facts and any witness who launches into the aesthetic, psychological or social implications of what he has observed will be sternly recalled to the ways of legal righteousness. We leave that sort of thing to novelists and playwrights and such like frivolous persons. So when I finally decided to speak about admissibility in the law of evidence and its relationship to the whole truth you will understand that I was only thinking of admissibility in relation to the ascertainment of the relevant facts.

Finding the facts The achievement of that limited objective might seem a simple task. I n fact, it is often difficult and occasionally impossible. There are a wide variety of reasons for this. One is that under our system of adversary procedure the whole of the relevant facts are rarely placed before a judge and judges have no power to investigate gaps in the evidence. This factor does not operate so obviously in criminal prosecutions as in civil actions because the Crown has a duty in criminal prosecutions to present all relevant facts known to it. The defence has no such duty and many motives for maintaining a discreet silence about highly relevant matters unless they are clearly and unequivocally in favour of the accused. I n civil actions both sides are under a duty not to mislead the judge on matters of fact but mercifully that does not require each party to reveal every weakness in its case. The result is that in many cases judges simply do not have the whole facts, and know it, but must decide the case on the evidence placed before them. I n one case of this sort the late Lord Justice-Clerk Thomson expressed the court's dilemma. The case related to the sale of a black pedigreed Aberdeen Angus cow name Evolvira of Ranks. Lord Thomson said "This is a most remarkable case. I t has all the merits and fascination of a detective story except that it lacks a solution. So far as this proof discloses, what happened to Evolvira is wrapt in the same sort of mystery as surrounds the "Marie Celeste" or the Appin murderer. I n September 1854, a black Angus cow arrived a t Islip. There is a strong body of evidence that that cow was earmarked T.34 and was in fact a cow called Romalisa. There is also a strong body of evidence that the cow which arrived at Islip was earmarked T.28 and was called Evolvira. The speculative ingenuity of those engaged in the case has failed to disclose any way of reconciling these two contradictory views. There is no solution. Some parts of the jigsaw must be missing, but we have no way of discovering what they are. I n tackling the problem of making the best picture eYorkshire Dale Steamship Co. v Minister of War Transport, 1942, Appeal Cases 691, 706. 30verseas Tankship (UK) Ltd. v Morts Dock & Engineering Go. Ltd. (The Wagon Mound), 1961, Appeal Cases 388.

one can of the bits that are available, I must confess that, had my task been simply to read the evidence and make up my own mind on the printed word, I would have preferred the pursuers' version of the picture to the defenders. I think it makes a better picture out of the bits available, leaves fewer blanks and leaves fewer pieces over for which no fit is found. While fully appreciating that their (i.e. the defenders) initial failure to read the earmark and the time which elapsed before T.34 was positively identified leaves a very considerable gap, I just cannot convince myself that somehow or other between October and January, T.34 was literally snatched from the jaws of death in the meat market in Aberdeen and by some leger de main spirited down to Islip, to die ultimately of the birth of a calf which there is ground for thinking she had not even conceived. I find it difficult to believe that there ever was a time when these two exiles from Banks ruminated together in the lush pastures of Islip before Evolvira and her authentic calf vanished from both human and bovine ken, leaving no record of their ghostly p a ~ s a g e . "This ~ is, as I have said, a limitation inherent in the adversary form of procedure. There are respectable arguments for giving investigatory powers to judges but consideration of that major legal upheaval lies outside my subject today.

The Limitation of T i m e and Expense Another factor which restricts all investigations but legal investigations more than others is time and expense. Every act or event has causes which have in turn their own causes and every one has consequences which spread out from it in widening circles till the ripples become too faint to see. I n non-legal investigations commonsense determines which of these causes and consequences will be taken into account. I n legal investigations, where every fact has to be established by the evidence of one or more witnesses, time and expense place greater constraints on the enquiry. I have mentioned tribunals and administrative enquiries as examples of quasi-legal investigations in which the law of evidence is not applied. My experience of these is that, despite efforts to limit the desire of parties to bring out every conceivable fact which might be thought to advance their respective cases, a great deal of evidence is admitted which, at the end of the day, is ignored by the tribunal or by the reporter. The courts of law keep a much tighter grip on the relevancy of evidence. I n a case in 1895 Lord President Robertson stated the view of Scottish judges in words equally applicable today. He said 'Courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried. Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials. Experience shows that it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse a jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand".3 An English judge Baron Rolfe expressed the same thought in a more striking way-"If we lived for a thousand years instead of about sixty or seventy and every case was of sufficient importance it might be possible and perhaps proper . . . to raise every possible enquiry as to the truth of statements made. . . . I n fact, mankind finds it to be impossible." This consideration causes evidence to be excluded which, to laymen, may seem very pertinent. May I give one example? I n a civil action of damages for rape the female pursuer will not be permitted to tender evidence that the defender was of a brutal and licentious disposition. No doubt her attacker had such a disposition but all men with brutal and licentious dispositions do not commit rape so that the evidence is more prejudicial than in point. I n criminal cases, the accused may not be 41slip Pedigree Breeding Centre & Ors v Abercromby, 1959, Scots Law Times, 161, 164. 5A v B, 1895, 22 Rethe's Reports, 402, 404. OAG. v Hitchcock, 1847, 1 Exchequer, 91, 105.

examined as to his previous character unless he has represented himself as being of good character or has attacked the reputation of prosecution witnesses. The accused himself may, if notice has been given, attack the character of the victim in cases of murder, assault or rape but may not go on to lead evidence of specific acts of violence or sexual intercourse because that would involve the court in detailed investigation of other incidents. Apart from these cases, which are governed by legal rules, there are many other situations in which a judge has a discretion to decide if evidence of collateral facts has a sufficiently direct bearing on the principal issue to be admitted.

The Unreliability of Witnesses The principal obstacle to the ascertainment of truth is not, however, the reticence of the parties or the limitations imposed by time and expense but the unreliability of witnesses who are attempting to tell the truth. Deliberate lying in court is not common, although a number of witnesses shade their evidence according to their partialities. At the other end of the scale, accurate, detailed, convincing eye-witness evidence is relatively uncommon. I n between come the great mass of witnesseshonest men and women slightly, substantially or wildly and gloriously wrong because of the inaccuracy of the human memory and the tendency of the human mind not to rest until it has found a pattern to fit all the facts and impressions which it has received whether these are accurate or not. Every judge responds to the complaint of the English judge that he spent most of his time determining the cause of collisions between a pair of cars each of which was, at all material times, stationary on its own side of the road and blowing its horn. The Historical Background U p to the 19th century lawyers treated conflicts of evidence as flowing from various kinds of incapacity or interest on the part of witnesses. O n that account, they excluded all witnesses whose capacity to tell the truth, or whose interest in telling the truth, was suspect. At one time all women were excluded but whether on grounds of capacity or interest is not clear. By 1797, when Hume, who is the earliest author on the criminal law of Scotland, was writing, the law excluded from the witness box all those affected by unsoundness of mind, non-age, connection with the prosecutor or accused, infamy (that is, outlawry), enmity to the accused and interest in the issue. Similar rules applied in civil actions.' I n time this approach to the problem defeated its own ends for it became difficult to find admissible witnesses with knowledge of the facts and, where there was a lack of evidence, the illogical step was taken of admitting witnesses who were otherwise incompetent to give evidence although their evidence was received cum nota-which may be loosely translated as "under suspicion with falsity". 8 This whole approach to the problem was demolished by the philosopher and legal reformer Jeremy Bentham in his "Rationale of Judicial Evidence". Bentham took as his example of what the law should be "the domestic or natural system" of settling disputes, that is, the rules which the head of a family might employ in investigating a domestic dispute. He summed up its main character istic thus-"Hear everybody who is likely to know anything about the matter, hear everybody, but most attentively of all and first of all those parties who are likely to know most about it-that is the partiesV.g The law took a long time to put this good advice into effect but, step by step, the grounds of disqualification of witnesses were abolished. Only one remains. I n Scots law spouses were not competent witnesses against one another so that a wife was not a competent 'Dew v MacKnight, 1949, Justiciary Cases, 38, 42. sDickson on Evidence, Sec. 1452. "entham's Works, VII p. 597.

witness for or against her husband except where she was the victim of his assault and in some other cases. The Criminal Justice (Scotland) Bill which fell with the last Labour Government provided that a spouse might be a competent though not a compellable witness in all cases. I t preserved however the right of a husband or wife to refuse to disclose any communication between them during the marriage and I shall have to refer to that later. The Modern Approach Bentham's approach has an irresistible appeal to laymen and lawyer alike. I n its modern form it is an injunction to admit all relevant evidence and, if evidence seems doubtfully relevant, to admit it until its relevance can be determined. This is the way in which most people approach disputed matters of fact. Moreover, it is the approach adopted by those tribunals and administrative enquiries which conduct their business subject to a statutory provision that the law of evidence is not to apply. They have often to listen to a lot of pretty peculiar evidence but it has not been suggested, so far as I am aware, that their conclusions are irremediably vitiated by its admission. Why then, having regard to the inherent difficulties of resolving disputes about fact, do courts of law persist in regarding as inadmissible certain categories of relevant evidence? The fact that courts do so is treated by many laymen as one of those mysteries of the law which defy rational explanation. I t will be my purpose today to look a t some cases in which the courts exclude facts which are admittedly legally relevant and to attempt to show that the rules about admissibility of evidence are not only rational but necessary. I shall take my examples from Scots law. Similar categories of exclusionary rules may be found in English law but the rules are different and there is no branch of law in which it is easier to make mistakes if one has no personal experience of its working than the law of evidence. I shall refer to English law occasionally and when I do you would be wise to put a black mark against it and like the censor in Ancient Rome and the judges taking the evidence of an incompetent witness in the old days admit it cum nota. Privilege Perhaps the easiest group for a lawyer to justify are those cases in which evidence is excluded because there is a n overriding public interest in not disclosing it. These cases are loosely grouped together under the head of confidentiality or privilege. The clearest case is Crown privilege where a Minister of the Crown prohibits the disclosure of information on the ground that such disclosure would be contrary to the national interest and the clearest example of this type of case is where the disclosure of information would undermine national security. The case of Duncan v Cammell Laird €3 Co Ltd1° arose out of the loss in 1939 of the submarine Thetis on her submergence trials with a loss of 99 lives. I n actions of damages on the ground of the negligence of Cammell Laird, the Board of Admiralty successfully objected to a call on the defendants to produce numerous documents relating to the construction of the submarine. The use of such information to the enemy in time of war was obvious and the court refused to order the production of these documents. I n other cases the damage to the public interest has been less clear. The Civil Service, in common with many large organisations, has a passion for secrecy and Crown privilege has been claimed in circumstances where the national interest is hardly discernible. I n Broome v Broomell the Secretary of State for War objected to the production of records of interviews between a representative of SSAFA (Soldiers Sailors and Air Force Families Association) and the parties to a divorce action on the '"1942, Appeal Cases, 624. 111955, Probate Cases, 190.

ground that maintenance of the morale of the armed forces would be damaged thereby. I n that case the records were in the possession of the Government and the challenge to their production was successful. An even bolder attempt by the same body to have similar records removed from the process of an action in Scotland where they had been lodged by one of the parties was repelled by the Scots Courts.12 The courts in both countries reserve the right to refuse to accept the certificate of a Minister of the Crown that disclosure would not be in the national interest but, in practice they treat such certificates with great respect and rarely refuse to give effect to them. One argument formerly much advanced by civil servants now appears less often. This is that communications between civil servants should be absolutely privileged because, if they were not, these fearless guardians of the public interest might hesitate to put the whole truth on paper with adverse effects on Governmental decisions. Of this argument Lord Hudson remarked in the House of Lords "It is strange that civil servants alone are supposed to be unable to be candid in their statements made in the course of duty without the protection of an absolute privilege denied to their other fellow subject^".^^ But the argument is still sometimes heard.

Spouses and Solicitors The other cases in this category are communications between husband and wife made in the course of a marriage, which are protected by statute14 to preserve the marriage bond and family life, and professional communications between solicitor and client, which are protected to enable citizens to consult their legal advisers freely without the risk of information being revealed to a future opponent in a litigation. The existence of the latter kind of privilege is essential to the working of any legal system. Communications between other persons are not confidential unless they passed in connection with the preparation of a case in court or, possibly, during an attempt to reconcile parties. Many other kinds of statement are made on the understanding that they are to be confidential with the result that the recipient is under a moral or ethical duty not to publish them. They are, however, not legally protected and must be disclosed in a court of law so that bankers, doctors, clergymen and journalists are not entitled to refuse to disclose the nature and source of statements made to them. Most American and some other states confer limited privilege on statements made to doctors and there has been an extensive discussion in recent times15 about the possible extension of protection to communications made to doctors and clergymen but the general view in both England and Scotland appears to be that the law of these countries should not be altered. Evidence Illegally Obtained . My next example illustrates the law's dilemma. There is no class of case in which the conflict between the desirability of admitting all evidence and the necessity of safeguarding the public interest emerges more clearly than in relation to evidence illegally or improperly obtained. The rule in civil actions is that such evidence is admissible on the ground that the policy of the law is to admit almost all evidence which will throw light on disputed facts and enable justice to be done.16 The Scottish authority for that view is an old one and it has been suggested that, if it was reconsidered, the rule would be stated in less absolute terms. I t might, for example, as in criminal cases be left to the discretion of the presiding judge. I t is probable that that would make little practical difference for the tide runs strongly in favour of admitting all evidence 12Whitehall v W., 1957, Scots Law Times, 96. 13Conway& Rimmer, 1968, Appeal Cases, 910, 976. 14Evidence (Scotland) Act 1853 S.3; Criminal Evidence Act 1898 S.l(d). 16SeeResearch Paper on the Law of Evidence (Scottish Law Commission 1979) para 18-46 et seq. 16Rattray v R, 1897, 25 Rethe's Reports, 315.

in civil, actions. I n the divorce action at the instance of the Duke of Argyll, the Dcke tendered in evidence diaries which he had obtained by breaking into the hulrse occupied by the Duchess while they were living apart and taking them from her bedroom. There are few more improper ways of obtaining evidence than that-except, perhaps, by torture or violence-but Lord Wheatley, applying the rule similar to that adopted in criminal prosecutions, admitted the diaries as not being unfair to the Duchess and as throwing light on disputed facts and enabling justice to be done. The Duke's counsel subsequently used the diaries with devastating effect and decree of divorce was ultimately granted.17 The law in England appears to be to the same effect but the leading English decision-the Privy Council case of Kuruma v Reginals has recently come under criticism. In both countries, therefore, the tendency is to admit evidence improperly obtained in civil actions leaving it to the party against whom such evidence is used to take any civil remedy which may be open or to complain to the criminal authorities if the evidence was obtained by crime.

Evidence Illegally Obtained: Criminal Prosecutions I n criminal prosecutions it is less easy for the courts to deal with the matter in this way because the improper evidence will normally have been obtained by the police. It may be evidence of admissions by the accused elicited by unfair methods or real evidence recovered by an illegal search. There are no Judges Rules in Scotland and the admissibility of such evidence is governed by the law of evidence. Oral confessions are admissible if they have been elicited by questioning during the investigation of a crime and before the police had sufficient information to arrest the accused. After arrest or after the police have sufficient information to arrest the accused, they are admitted only if voluntarily made but not if elicited by questioning. Confessions obtained by false promises or unfair methods are invariably excluded.19 These rules are stricter than those applied to the recovery of real evidence because when one is dealing with oral statements there may be uncertainty about what was said or as to its improper interpretation. That problem does not exist or does not exist to the same extent with regard to real or documentary evidence. The modern rule governing the admissibility of real evidence improperly obtained was stated by Lord Justice General Cooper in Lawrie v Muir in a passage which has been constantly referred to in Scotland and other jurisdictions2O as setting out the justification for leaving the admission of such evidence to the discretion of the presiding judge. Lord Cooper said "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict-(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. O n the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods. . . . Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned, whether any 17Dukeof Argyll v Duchess of Argyll & Another 1963 Scots Law Times (N) 42,43 ls1955, Appeal Cases, 197. lowalkers on Evidence p. 3. POHeydonCases and Materials on Evidence p. 230.

given irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. The principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair This approach to the problem is in striking contrast to that which, I understand, is adopted in England. The English rule has been stated by Sir Rupert Cross in his work on Evidence thus "It may therefore be concluded that, under English law, illegally obtained evidence is admissible, provided it does not involve a reference to an inadmissible confession of guilt and subject to the overall exclusionary discretion enjoyed by the judge at a criminal I understand this to be a discretion to disallow admissible evidence in the interests of fairness to the accused if its prejudicial effect outweighs its probative value. The question of the extent to which relevant admissible evidence should be excluded to discourage the police from using illegal means of obtaining it has been much discussed in the United States, Canada and in this country. Such evidence is generally inadmissible in the United States as "fruits of the poisoned tree" but on the other hand, is generally admissible in Canada.23The discussion has thrown up a variety of opinions. Sir Rupert Cross leans towards admissibility. He takes the view that it is a mistake to suppose that the choice lies between admitting the evidence and leaving the aggrieved party to pursue such civil or criminal remedies as may be available or, on the other hand, rejecting the evidence as a warning to officialdom that convictions cannot be obtained by illegal action. He makes the point that the police do take account of judicial c r i t i c i ~ m It .~~ is a view entitled to great respect. On the other hand, the discretionary rule has its supporters in England. I n the recent case of Regina v Sang25the House of Lords affirmed the existence of the general discretion to exclude evidence which is more prejudicial than probative but held that there was no ground for exercising that discretion so as to exclude evidence obtained as the result of the activities of an agent provocateur. As such the case appears to Scottish eyes to decide little that is new and is chiefly interesting for digressions by the only Scottish judge, Lord Fraser of Tullybelton, and by Lord Scarman. In Kuruma v The Queen, to which reference has already been made, Lord Goddard referred to a number of Scottish cases as supporting the view that if evidence is relevant it is admissible and that the court is not concerned with how it was obtained. Lord Fraser pointed out-what had long been known in Scotland-that Lord Goddard misunderstood the Scottish cases and that the Scottish rule is not the same as the English one. When so great a judge as Lord Goddard can make a mistake of that kind you will understand that my apologies and disclaimers for referring to the English law of evidence proceed from a real fear of the dangers involved. Lord Scarman, at the end of his opinion, refers to cases in which, after the crime, evidence has been obtained from the accused." He referred to the Scottish rule and commented that it would be unfortunate if the discretionary principle of fairness to the accused referred to in these cases was not recognised in all criminal jurisdictions of the United Kingdom. But discontent with existing rules has not been confined to England. In a recent research paper for the Scottish Law Commission by Sheriff M a ~ p h a i l to ,~~ which Lord Scarman referred and to which I am also indebted, my colleague argued that the Scottish preference for admitting improperly obtained evidence ZILawriev Muir, 1950, Justiciary Cases, 19, 26. 22Crosson Evidence (4th), p. 282. 23Crosson Evidence, (4th), p. 282. 24Crosson Evidence (4th), p. 285. 151979, 3, Weekly Law Reports, 263. 20SeeFootnote 15.

in civil actions was wrong and that it was undesirable that a party to a civil litigation should be enabled to gain an advantage as the result of his own or a third person's wilful misconduct. He suggested that, in civil cases as in criminal cases, the court should be entitled to exclude evidence obtained by illegal or irregular means. I t may be that we are moving towards the adoption of a discretionary rule in both countries in both civil and criminal proceedings.

Best Evidence Lastly, I come to an exclusionary rule so qualified by exceptions and subject to so many subtle distinctions that only its principal features can be mentioned. This is the rule against the admission of secondary evidence usually described as the best evidence rule. I t precludes the production of copy documents or of oral evidence about the content of documents or the appearance of articles if the original documents or articles are available. More important, it makes secondary hearsay inadmissible. The ratio of the rule is obvious and there can be little quarrel with it. Courts of law should not have to reconstruct the terms of documents or the appearance of articles with all the possibilities of error which that process involves when the documents and articles themselves are available. Similarly, hearsay evidence should not be admitted because if the witness who made the statement is available it is superfluous. Moreover, it relates to a statement not made under oath or subject to cross-examination and it may, at best, be inaccurate and, a t worst, concocted. These reasons are convincing until the inconveniences of a strict application of the rule against secondary evidence are considered. Oral Hearsay The exclusion of oral hearsay is a good example of the way in which a striving for the best may drive out the good because there are cases in which oral hearsay is the best available evidence although it may not be the best conceivable evidence. I n Scotland, oral hearsay is admissible only if the maker of the statement, that is the original witness, is dead, insane or, in civil cases, is a prisoner of war but not if he has disappeared or cannot be traced or is too ill or is otherwise unavailable to give evidence. The result is that if A, an elder of the Kirk, arrives late at a meeting of the Kirk Session and explains that he had to assist B whom he saw being attacked by C, evidence of his statement cannot be put before the court at C's trial by his fellow elders if he himself is too ill to give eye-witness evidence of the assault. There are other cases in which it may be so costly to identify the maker of a statement and bring him to court that it is impossible, in practice, to prove the fact to which he spoke, e.g., where one of a large party of tourists tells a policeman at a motor accident that he saw one driver slump over his steering wheel before the accident and slips away before his name is taken. Another result of the rule is that it prevents witnesses referring to hearsay statements on which they have acted and which are necessary narrative to explain their subsequent actions. Various devices are adopted by counsel to get over this difficulty and their result is usually to leave the judge or jury with a very good idea of what was said although no reference was made to the actual words. Sheriff Macphail gives an example evidence of a kind which may be heard in any criminal court in the land any day; '(Just answer "Yes" or "No", Constable. Did you receive a wireless message ?-Yes As a result of that where did you go?T o the house of A in B road. When you got there did you see someone?Yes, I saw X. Do not tell us what he said but as a result of that what did you do ?I went to the house of C in D street and arrested Y".

Now, if X , though available, does not give evidence at Y's trial the jury still know that X made a statement which inculpated Y but because no hearsay evidence had been admitted the judge would not normally direct the jury to disregard the implication of X's information. You may think it would be preferable if all that X said could be admitted as narrative and the jury directed to disregard it as evidence against Y and given the explanation that it had only been admitted to explain how Y came to be arrested. The rule against hearsagalso causes difficulties where documents contained statements of fact by different witnesses. The rule requires that each statement should be spoken to by the witness who was responsible for it appearing in the document. The difficulty of doing so arises sharply when one is dealing with the books or manufacturing records of a large organisation. This particular difficulty has been met in Scotland and England by statutory provisions2' which enable records relating to trade or business to be received as proof of their contents in criminal prosecutions providing certain requirements are satisfied. These provisions apply to trades and businesses only and not, for example, to the records of Government departments or National Health Service hospitals. There are similar provisions applicable to civil proceedings28 which enable documents to be received as proof of their contents if compiled in the performance of a duty to record information by persons with personal knowledge of the information recorded. This enables statements in hospital records to be used without adducing radiographers and laboratory technicians to speak to X-rays and tests. Statements provided by computer are also receiveable if certain cumbersome conditions are satisfied. I t seems possible that these statutory provisions could be replaced by one provision that records routinely kept by reasonably reliable methods shall be admissible as evidence of the facts they contain. I t would, of course, be open to the opposing party to challenge the accuracy of such records and for the judge to decide what reliance should be placed upon them.

Conclusions May I now attempt to draw together the threads of this wandering discourse. Having attempted to show that what lawyers mean by the whole truth is simply an investigation of the relevant facts, I went on to demonstrate that the courts are sometimes limited in their choice of relevant facts by the failure of the parties to put the full facts before them and that sometimes they have, in the interests of time and expense, to prevent the parties putting marginally relevant facts before them. I t was also pointed out that the investigation of facts by examination of witnesses has a number of difficulties and that the courts, which started out by excluding numbers of witnesses as inherently unreliable, came round to the view during the 19th century that, so far as possible, all relevant evidence should be heard. I t then became necessary to explain why, if this was the case, they excluded from consideration evidence which they conceded was relevant. Three of the main categories of exclusionary rules were considered. First, privilege-the courts cannot demand information which the State refuses to be disclosed in the interest of national security nor do they require wives to give evidence against their husbands or solicitors against their clients in order to protect other public interests. Secondly, while appreciating the necessity of full information to do justice between parties they may feel unable to accept evidence which has been illegally or improperly obtained. The doubt about the extent of this exclusion has resulted in different rules in civil and criminal actions, in different rules in respect of oral confessions and documents or articles recovered by illegal search. These rules might well ='Law Reform (Miscellaneous Provisions) (Scotland) Act, 1966 S.7; 1968, S.16: Civil Evidence Act, 1968, S.4. 28Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968, S.13-15; Civil Evidence Act, S.5, 6.

be liberalised but it does not seem possible that any court would receive evidence which had been obtained by torture or violence. A Scottish court in a civil case has accepted evidence obtained by theft but much stricter standards on the gathering of evidence have been imposed on the police. Thirdly, when the law, in the interests of accuracy, decrees that it will only admit the best evidence, the obstacles created by the ordinary difficulties of day-to-day existence force it to recognise exceptions which develop and interact to produce a complex body of rules.

Differences : Legal and Scientific Investigations The truth of the matter is that legal investigations are fundamentally different from scientific investigations or, despite what Bentham wrote, domestic investigations. Within the limits of time and expense, the scientific investigator has great freedom in determining the method and scope of his enquiries. Domestic investigations are free to ignore the prot-ction of public interests. Legal investigations must necessarily be conducted according to a set pattern within the constitutional context of the relevant legal system. They must accept many limitations. They cannot aspire to freedom but only to the best compromise between these limitations and the freedom to consider all relevant evidence. I have been concerned to show that the limitations are real and rise from the nature of our society and the values on which it is based. Put shortly, there are interests whose protection overrides the ascertainment of the truth. A system of law such as ours is subject to many criticisms. No doubt it could be improved. I t is possible that, at best, it may be an inefficient way of settling disputes. If so, it is like democracy itself of which Winston Churchill is alleged to have said that it was a very inefficient way of governing a country except that all the alternatives were worse.