Statutes
Published date | 01 May 1964 |
Date | 01 May 1964 |
DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01031.x |
STATUTES
OATHS
AND
EVIDENCE (OVERSEAS AUTHORITIES
AND
COUNTRIES) ACT,
1963
THIS
statute effects five improvements to the law of evidence, and
demonstrates yet again the importance
of
a private member’s
activity
in
the field of law ref0rm.l The Act concerns the obtaining
of evidence abroad for use in this country,2 and the obtaining of
evidence in this country for use abroad.
Section
1
empowers a
cc
person appointed by
a
court
or
other
judicial authority of any foreign country
”
to administer oaths
’
‘c
for the purpose of taking evidence
for
use in proceedings, not
being criminal proceedings, carried
on
under the law of that
country.” Such a person was not hitherto empowered to adminis-
ter an oath,4 and the only general power to obtain evidence
in
England for use
in
proceedings abroad has been the Foreign
Tribunals Evidence Act,
1856.
This power is cumbersome to
invoke
in
that
it
involves an application to a superior English
court,J and an order of that court appointing an examiner and
giving such directions as to attendance and discovery as are appro-
priate. The old procedure will, however, still have to be employed
where the witness is reluctant in that the new procedure naturally
does not contain any coercive provision.
In
the case of a willing
witness the new procedure can always expect to be employed. The
inherent limitations in this new procedure are that the proceedings
in which the evidence is to be employed should not be
cc
criminal
proceedings
”
and that the examiner should have been appointed
by
a
“
court
or
other judicial authority.” The expression
c6
judicial authority is of uncertain ambit,” but in practice should
cause
no
difficulty. The expression
cc
criminal proceedings
”
is
presumably to be interpreted in accordance with English law,‘
and could be expected to cause difficulty in relation to the combined
proceedings which occur
on
the Continent.a
1
For
the history
of
the Bill
for
the Act see: House
of
Commons, Official
Report, Vol.
667,
col.
1230
(First Reading);
ibid.,
Vol.
672,
col.
863
(Second
Reading);
ibid.
Vol.
679,
col.
837
(Third Reading);
House
of
Lords, Official
Report, Vol.
251,
cols.
124
(First Reading),
614
(Second Reading),
1267
(Report),
1459
(Third Reading).
2
The Act extends to Northern Ireland, and
may by
Order in Council
be
extended to the Isle
of
Man
or
any
of
the Channel Islands
(8.
7).
8
This includes affirmation
:
Interpretation Act,
1889,
8.
3.
4
See Evidence Act,
1851,
8.
16.
5
1856
Act,
8.
1
and
6.
For
details
of
the procedure see R.S.C., Ord.
37,
rr.
54-61.
6
See de Smith,
Judicial Review
of
Administrative Action
(1959),
p.
37
et
seq.
7
The question
of
characterisation
is
however
a
difficult one. See F;,A.
Mann,
(1963) 79
8
As
in
Raulin
v.
Fischer
[1911] 2
K.B.
93.
“
The Primary Question
of
Construction and the Conflict of
Laws
L.Q.R.
525.
333
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