§ 9.4 p.m.
§ House again in Committee.
§ Clause 92 [Non-defendant's bad character]:
§ On Question, Whether Clause 92 shall stand part of the Bill?
Lord Carlile of Berriew
If it is permissible, I have a question to raise with the Minister about Clause 92; it would be helpful if she could provide an answer. Under Clause 92, the cross-examination of prosecution witnesses is limited, because one will be able to cross-examine a prosecution witness about their bad character only if that evidence would fall within the criteria set out in the clause.
As the noble Baroness knows, it is a common occurrence for defence counsel to cross-examine a prosecution witness about offences of dishonesty on that person's record, even if the witness is not being accused of taking part in the crime alleged against the defendant, and even if the crime alleged is not one of dishonesty. One of the most common ways of attacking the character—the credibility—of a prosecution witness is by cross-examining him on his record. Sometimes, that is a telling form of cross-examination. Reading Clause 92, it appears—I hope that I shall be told that this is wrong—that it will no longer be possible for a defendant to attack the credibility of a prosecution witness by revealing in cross-examination a series of convictions for dishonesty.
If that is the case, that would remove an important shot in the defendant's locker and deprive the jury of one way in which prosecution witnesses can be assessed. Sometimes, especially in fraud cases or those in which obtaining by deception is alleged, for example, prosecution witnesses can look and sound very convincing but, as the noble Baroness knows, once their record of social security fraud or stealing from old ladies is revealed in cross-examination, they look a very different kind of witness.
738 Can the Government assure us that it will still be possible to do that? If it is not clear, will the Minister reconsider? It is plainly a matter of common sense that that type of attack on prosecution witnesses' credibility ought to remain possible.
§ Lord Thomas of Gresford
I further suggest the converse case, and ask whether the Government intend not to permit cross-examination of a defence witness about character. Frequently, defence witnesses, especially alibi witnesses, are not of good character and the prosecution enjoy themselves by producing the whole of their criminal record and putting the unfortunate witness through it, although it has no relevance to the evidence which the witness is giving. I should like the assurance that what applies to prosecution witnesses applies also to defence witnesses.
Another matter that I should like to raise under the clause is why evidence of bad character of a witness requires the leave of the court, whereas the bad character of a defendant does not. Can the Government give any explanation of that discrepancy?
§ Lord Kingsland
I respectfully agree with what both the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, said. I place my concern in the context of what their Lordships said. It worries me that it is much more difficult for the defendant to get admitted evidence of bad character against a prosecution witness than it is for the prosecution to get evidence of bad character admitted against the defendant. Under Clause 93 it is much easier to get a defendant's bad character put in evidence than it is a non-defendant's character under Clause 92. The Government ought to correct that inequity on Report.
§ Baroness Scotland of Asthal
I shall deal first with the credibility issue raised by the noble Lord, Lord Carlile. My response applies equally to the comments made by the noble Lord, Lord Thomas of Gresford. I can reassure Members of the Committee that Clause 92(1)(b) enables evidence to be given that is probative of the matters in issue. That will cover evidence going to a witness's credibility, be they prosecution or defence. As the noble Lord, Lord Carlile, said, whether or not a witness is to be believed will have an important bearing on their testimony and the facts to which it relates. Therefore, provided that the evidence is not of a trivial value, it will be admissible. The purpose of defining Clause 92 as relating to "Non-defendant's bad character" is to do precisely that. Any witness, be they for the Crown or the defence, will be subject in the same way to Clause 92.
I hear what was said by the noble Lord, Lord Kingsland, and mooted by the noble Lord, Lord Thomas of Gresford, about the difference between the witness's position and that of the defendant. The critical question regarding defendants is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract them, is admitted. However, as only the 739 defendant in the case is at risk of conviction, the test is apt only for their protection. Members of the Committee will see that in Clause 93(3). I said earlier that the reason that the provision had been included was that the test is already well understood and can be applied. We did not seek to change the test, so it is echoed in Clause 93(3).
It is, however, still important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character. To protect non-defendants from such attacks, a test of enhanced relevance is proposed.
I hope that that satisfies the noble Lord about the difference between the two provisions and reassures him.
§ Lord Thomas of Gresford
I regret to say that I do not feel reassured. I am sure that the noble Baroness is aware of the concerns expressed about whether the provisions accord with the European Convention on Human Rights. The Joint Committee on Human Rights has expressed a strong view that there is no equality of arms as a result of those clauses. I am sorry that that has not been taken on board in the Bill. I will consider the Minister's response, but the matter will undoubtedly recur.
Lord Carlile of Berriew
Before we determine the matter, perhaps I might ask the Minister to reflect on the matter, for two reasons. First, as she knows, in a criminal trial one cannot adduce evidence that goes to credit alone. It is not a matter in issue in the trial. I have a concern about whether the words of subsection (1)(b) would in themselves allow cross-examination as to credit on the basis of a witness's previous convictions, when the witness's credit is not a matter in issue in the trial in the conventional sense.
The second matter that I ask the Minister to reflect on is the effect of subsection (3) on subsection (1)(b). Earlier in our debates, the Minister said that there was a lot of material in Archbold about the existing law on had character. During the dinner break, I nipped into the Library and looked in Archbold 2003. There are 15 pages—pages 1135 to 1150—on a body of law that has existed in its present form since, at least, the Criminal Evidence Act 1898. Fifteen pages for 105 years of law is not bad.
It seems to me, looking at subsections (1)(b) and (3), that we will have 15 pages of Archbold on that narrow subject in two or three years, if we are not careful. I urge the Minister to be certain that we are not unintentionally making the law worse, before she tries to persuade the Committee that we should definitely accept the clause.
§ 9.15 p.m.
§ Baroness Scotland of Asthal
We will consider the matter, but it is our understanding that the way in which Clause 92(1)(b) should be interpreted would enable evidence to be given that is probative of the matter in issue. That will cover evidence going to the 740 witness's credibility. That is our understanding of the clause. I do not suppose that the noble Lord wants me to reconsider that, as it seems to accord with what he would wish. If our understanding were to change, on reflection, I will, of course, come back on the matter, but I do not think that the noble Lord would want me to.
§ Clause 92 agreed to.
§ Clause 93 [Defendant's bad character]:
§ Lord Kingsland moved Amendment No. 140:
§ Page 62, line 10, after first "if" insert "it has direct relevance to issues in the case"
The noble Lord said: I want to say immediately that our view of the expression "issues in the case", as contained in the amendment, is that it is narrower than the definition provided by the Government in Clause 96(1)(a) and (b). In Clause 96, the Government include, as an issue between the defendant and the prosecution, the question of whether the defendant has,
a propensity to commit offences of the kind with which he is charged".
At the end of the sitting before dinner, the noble Lord, Lord Thomas of Gresford, raised the question of the compatibility of the Government's proposals with the views of the Law Commission. The Law Commission has expressed a view on the scheme of Clause 93, and it is contained in paragraphs 6.64 and 6.65 of its report Evidence of Bad Character in Criminal Proceedings. The report says:
it is axiomatic that only relevant evidence should be admitted. Not all evidence for bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter, if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion. We therefore favour a general rule excluding bad character evidence (subject to exceptions) rather than a general inclusionary rule, subject to a discretion to exclude".
The position taken by the Law Commission is diametrically opposed to that taken by the Government.
The issue of relevance is of central importance as a gateway to admitting any bad character evidence. I beg to move.
§ Lord Hylton
I would like to ask a nave layman's question. This clause and the preceding one, Clause 92, both say that:all parties to the proceedings agree to the evidence being admissible".When would that agreement be reached—in open court, in chambers or in some previous negotiation, before the trial?
§ 9.30 p.m.
§ Baroness Scotland of Asthal
If I may, I will deal with the question asked by the noble Lord, Lord Hylton, first. The agreement over evidence can be reached at any of the times mentioned by the noble Lord. Noble 741 Lords will know that, when the matter is committed, evidence is served by the prosecution, and it may be agreed that that is an appropriate way. As the trial continues, evidence may come up and the defence and prosecution may together agree that it is appropriate and pertinent that certain information goes forward. It would always be possible of course, if they were to make an application to the judge for the evidence of a witness to go in, for example, that the court could conceivably disagree with the balance. However, if both parties were to agree that would be unlikely to happen it would go in. Timing need not be a matter of difficulty.
The noble Lord, Lord Kingsland, spoke extremely succinctly to the amendments. In posing his questions, he asked a wide and broad question, so it is only right that I should give him a comprehensive answer.
Clause 93 goes to the heart of the new statutory rules on bad character and deals with the circumstances in which evidence of a defendant's bad character will be admissible in criminal proceedings. To set the context for the debate on these and subsequent amendments, it might assist the Committee if I say a few general words about this provision.
We have already had several useful debates, not least the one in the context of Clause 91, about the abolition of the common law rules on bad character and about letting the law stand as it is. Your Lordships will know that we do not believe that that would be an acceptable course to take. At present, the law is contained in a variety of forms that we touched on before the short adjournment, and, rightly, it was generally thought by all that amendment was needed. The difficulty and complexity of the current structure brought this area of law no credit, either to the courts and practitioners or to the public at large. An area of the law as important as this cannot be the preserve simply of experts. It may also have a chilling effect on the application of the law inhibiting the admission of relevant evidence even when this is appropriate and justified. Both Sir Robin Auld and the Law Commission have offered substantial criticism of the current state of affairs.
Leaving the law in its current state, therefore, is no longer an option. A new statutory scheme is required. The amendments relate to what form that statutory scheme should take. Therefore, our intention is to set out, as clearly as we can, a new scheme for admitting bad character, building on recognised concepts in the current law, but stating them in a comprehensive and coherent fashion—accessible to all and capable of straightforward application.
The scheme we propose consists of three key elements. The first is a new inclusionary rule that a defendant's bad character is admissible if it meets one or a number of conditions. The plethora of rules that have developed over the previous century or more, couched on an exclusionary basis and unclear in their application, inhibit the admission of this evidence, denying fact finders relevant material for determining the cases before them. That cannot be right. We must 742 ensure that the framework for admitting this sort of information in the future facilitates, rather than restricts, the hearing of relevant evidence.
Therefore, our starting point is that the new scheme should be one of inclusion, which promotes the hearing of relevant evidence by the courts where it is appropriate and justified. We believe that it is right to place more trust in our juries and magistrates to reach common sense decisions on the basis of the widest range of relevant evidence, unless there are good reasons for exclusion in the circumstances of the case. The Bill sets out a new framework for the admission of a defendant's bad character, under which the basic rule is one of inclusion rather than exclusion.
The second element of the scheme is a number of categories of admissibility. The Bill sets out eight categories, which are intended to cover all evidence that might be relevant in a case and to provide a straightforward and clear statement of admissibility. They reflect evidence that is admissible or is admitted under current law.
Paragraphs (a) and (b) of Clause 93(1) cover circumstances in which the defendant is content for the evidence to be admitted. Such evidence is admissible at present. Clause 93(1)(c) covers important explanatory evidence. Common law also already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. I shall return to that shortly in the context of Amendment No. 141.
Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and therefore should be admitted, unless their probative value is outweighed by their prejudicial effect. We wish to make the new statutory scheme for evidence of bad character as straightforward and as accessible as possible. That presumption is intended to reflect the fact that, generally speaking, convictions for the same or a similar offence will be most relevant to issues in the case. Again, we shall have a chance to debate that more fully shortly.
Clause 93(1)(e) builds on current law, which enables evidence of a defendant's previous misconduct to be admitted where it is relevant to the question of Built. It still takes more than 40 pages of one of the leading books, Cross and Tapper on Evidence, to describe the rules governing this area of the law. A clear restatement of the law is certainly needed. I do not want to play one-upmanship with the noble Lord's 15 pages of Archbold: he and I both know that Archbold may be the Bible, but others look elsewhere for the New Testament.
Paragraphs (f), (g) and (h) of Clause 93(1) cover matters that are dealt with by common law and the Criminal Evidence Act 1898. For example, in relation to co-defendants, a defendant may, under common law, adduce evidence relating to a co-defendant's had character if it is relevant to his defence. A defendant is also entitled to cross-examine a co-defendant on his record under the 1898 Act if the co-defendant has given evidence against him.
743 Evidence is also admissible under common law in cross-examination of witnesses and in rebuttal to correct any misleading claims made by, or on behalf of, the defendant to be of good character. Such a claim also means that the defendant can be cross-examined on his record under the 1898 Act. I know that many of those issues are very familiar to Members of the Committee. Finally, the 1898 Act also enables a defendant to be cross-examined on his record if he attacks the character of a prosecution witness. Paragraphs (f), (g) and (h) of subsection (1) make provision to cover similar circumstances in the future.
The third element of the scheme is a test for excluding evidence where admitting it would create unfairness; that is, its probative value would be outweighed by its prejudicial effect. This represents an important safeguard to protect the interests of defendants. It is not the only one included in the scheme and we shall have an opportunity at a later point to discuss others, such as those in Clauses 98 and 100.
We shall also have an opportunity shortly to debate in more detail the terms of the exclusionary test, so I will not take up much of the time of the Committee at this point. However, I mention it to provide noble Lords with a clear overall picture of the new rules governing a defendant's bad character.
To conclude, therefore, we believe that there is a wide consensus that the current law is unsatisfactory. Clause 93 represents a new departure with a comprehensive, statutory scheme that brings together all the rules in this area and restates them in a clear and coherent way. This will bring clarity to an obscure area of law, representing a better balance in the system than does the current complexity and uncertainty.
I turn now to the two specific amendments in this group. Amendment No. 140 inserts a general requirement that evidence of a defendant's bad character be of "direct relevance" to issues in the case. We do not agree that this would be a helpful addition to the Bill. It sets out carefully the basis on which a defendant's bad character should be capable of admission. All of these are circumstances in which the evidence will have a clear bearing on the case, either in assisting the defendant fully to put his case or in helping the jury to understand and determine the issues in the proceedings. That might be because it goes directly to issues relevant to the defendant's guilt or those that have a bearing on those issues by going to the defendant's character and credibility in appropriate circumstances.
A requirement for relevance is already clearly reflected in the various heads of admissibility where evidence is being admitted as probative to the issues of the case. It is explicitly mentioned in paragraphs (e) and (f) as evidence that is relevant to issues between prosecution and defence, or between co-defendants. Here, it is not clear what a requirement of "direct" relevance would add.
The issue of relevance also underpins the presumption created by paragraph (d) in favour of admitting convictions for the same or a similar offence. That 744 provision is of course also subject to the exclusionary test in Clause 93(3), under which probative value will be assessed against prejudicial effect. However, to add a further requirement of "relevance" as a condition for the provision being met would undermine the clarity and simplicity of approach that this presumption is intended to achieve. I think that it was the noble and learned Lord, Lord Cooke, who said earlier in the debate that probative value is now the guiding principle, both in New Zealand and over here. We do not intend to change that because there still has to be an assessment of the probative value.
On the other hand, we think that the amendment is likely to cause confusion. In the case of explanatory evidence, for example, Clause 85 requires the evidence to be such that, without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case. Evidence in this category is not admitted because of its probative value to the issues in the case, but rather to put other evidence in its proper context so that it can be understood. Evidence can be admitted on this kind of basis under the current law, and it is not clear what a requirement for "direct relevance" would add in these circumstances, other than confusion over the proper reason for admitting this kind of evidence and questions of whether the evidence needed to meet some further requirement of being probative.
A requirement of direct relevance is also likely to add confusion where evidence is being adduced by a defendant who may wish to make a clean breast of his record at the outset to demonstrate that he is putting his cards on the table or to counter any presentational disadvantage in it coming out piecemeal in cross-examination.
A number of noble Lords will know the kinds of incidents to which I refer, particularly where a defendant says, wish to tell the court that I have these convictions. I have always pleaded guilty. I am not pleading guilty this time because I did not do it". It would be most odd if the court were to rule that the defendant could not present his case in such a way because his bad character was of insufficient direct relevance to the issue.
Difficulties might also arise in the context of evidence admitted to address a misleading claim of good character or in response to a defendant's attack on the character of another. These categories reflect circumstances in which bad character evidence is admissible under the current law and represent important categories for such evidence, ensuring that the jury receives a balanced picture of the character of the defendant where he seeks to give a misleading impression about himself or further his case through attacking a witness.
But it is not clear what additional purpose would be served by requiring the evidence also to be directly relevant. What additional requirement would this impose? It would be very odd if this evidence could only be admitted in these circumstances if it was also directly relevant to the defendant's guilt.
745 The amendment reflects a concern that irrelevant bad character information should not be adduced. We understand that concern. Indeed, it is laudable. However, the Bill makes careful provision on the circumstances in which a defendant's bad character can be admitted. A blanket provision for "direct relevance" would cut across this and not aid clarity.
Amendment No. 141 would delete the provision for evidence to be admissible as "important explanatory evidence". The common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. For example, in the case of Sidhu ((1994) 98 Cr App R 59), the defendant was charged in relation to conspiracy to possess explosives in England. A video showing the defendant apparently leading the activities of a group of armed rebels in Pakistan was admitted as evidence of a "continual background of history". And in the case of Stevens ( Crim LR 649), evidence of previous occasions on which the defendant had assaulted the victim was admitted as part of the background to a charge of murder.
As the Court of Appeal explained in the case of Pettman (1985 unreported):Where it was necessary to place before the jury a continual background of history relevant to the offence charged, and that account would be incomplete or incomprehensible if not given in its totality, evidence forming part of that account should not be excluded merely because it established the commission of an offence with which the accused was not charged. A conclusion to the contrary. requiring events to be viewed in total isolation from their history, would make it difficult for the jury to do its job".So, in terms of our current jurisprudence, there is already a vehicle through which such evidence can be admitted where probative.
However, the Law Commission identified in its 2001 report that there was considerable difficulty with defining the boundaries of this kind of evidence and that it was often confused and conflated with evidence admissible as part of the res gestae—that is, matters that are closely bound up with the facts of the offence in time, place or circumstance—and that admissible under the similar fact rule. It therefore recommended making clear distinctions between evidence to do with the facts of the offence, evidence admissible because of its explanatory value and evidence admissible because of its probative value. We have sought to reflect that division in the way in which we have crafted these provisions.
The Bill takes that opportunity and makes clear provision for evidence to be admitted where its value to the case is in helping the jury to understand the other evidence that is being presented. In these circumstances, it is difficult to describe the evidence as "probative" because, strictly speaking, it does not prove an issue relating to guilt. but sets other evidence in context. We believe that this should be separately recognised to avoid the confusion that has arisen under the current law. We do not, therefore, consider that it would be appropriate to remove paragraph (c). I therefore resist the amendments and invite the noble Lord to consider and withdraw them.
746 I have tried to be as comprehensive as I can at this stage because I know we will be picking up various issues when we come to each specific section. I hope I will not have to repeat this, but I hope that it will help noble Lords to see the context in which we frame all the provisions and how they will sit.
§ Baroness Kennedy of The Shaws
It is very helpful that my noble friend the Minister has outlined the way in which the Government are approaching this issue because many people outside the Chamber do not know. They do not understand what this is all about.
The question asked by the noble Lord. Lord Hylton, touched on this in some way. I was asked earlier, outside the Chamber, by a noble Lord from these Benches to explain how, in Clause 93(1)(a), all parties to the proceedings could agree to the evidence being admissible. He said, "Who could complain about that?" The answer is that no one currently complains about that. Frequently in trial, the parties—the Crown and the defence—will put their heads together. The defence will ask for a formal admission in writing that can be given to the jury on all sorts of matters. One such matter might be to tell the jury that the accused person, who is charged with robbery, has never been in trouble in his life save once, when he was only 17 and was convicted of shoplifting. That is done on the basis that giving the jury that information will help them to see that he is not a man who commits burglary regularly and that they may speculate if it is not provided. But it is done by way of agreement.
The general public do not seem to understand that in many circumstances the defendant's bad character is already placed before the jury. It is being presented by the Government as though this never happens. It happens on a regular basis, but on good reasoning.
It has been admitted tonight, and I hope it will be given some coverage, that we are seeing something that has never happened before. Instead of the presumption to exclude, we are seeing the presumption to include—to put convictions in. That is a disgrace. It is a disgrace that the Government should be lowering themselves to that level. It is a source of sadness to many of us that that is happening. It is a volte face; it flies in the face of principle that has been developed over many years to protect those who stand trial. It should be a source of shame to those on these Benches and to the Front Bench that they should be arguing this, and arguing that it has been put forward to make simple that which is complex. What dissembling. It has nothing to do with making simple what is complex; it is to do with putting people's previous convictions in front of juries in order to increase convictions. Shame on you.
Let it be clear to all those who will look at the record of this debate and vote at a later stage what this is about. That is why most of us are saying that this amendment should be made to the Bill. Judges, lawyers and every justice organisation in the country are outraged and shocked that the Government should think of doing this. Shame!
§ 9.45 p.m.
§ Lord Thomas of Gresford
There is not much that one can say after that, save this: that the measure is contrary to the Law Commission's proposals; it is a break with hundreds of years of tradition; and it is being proposed entirely for the reason given by the noble Baroness, Lady Kennedy, to put convictions in front of juries. We have had no explanation why the onus is now on the defendant, who only in certain circumstances may challenge the admission of convictions, and yet in other instances, as listed, is not able to do that. Absolutely no justification has been given for that at all.
I was brought up to believe that evidence that is relevant is admissible and that which is irrelevant is not admissible. It is terribly simple. I have never had any problems in advising clients about putting their character in. One knows that if one attacks a prosecution witness, the character is going to go in. One knows all the circumstances when the character is going to go in, and there are no problems about it.
If there are 15 pages in Archbold and 40 pages in that much battered volume, Cross and Tapper On Evidence, dealing with the subject, that is simply to illustrate what is an attack on another person's character; what is a false impression given by a defendant; what is an important matter in issue; and what is important explanatory evidence. All the issues that arise in the simple common law structure that we have at the moment—those issues for decision by the judge—will still be there. I reject the concept that people will read this statutory framework in a local pub and be satisfied that they understand the law a lot better. That is a ludicrous way of defending a completely unacceptable proposition by the Government.
§ Lord Kingsland
I shall not ask the Committee to divide on the amendment tonight, but I hope that the Minister has listened carefully to the remarks of all the Members of Committee who spoke, with which I totally agree. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 141 not moved.]
§ The Deputy Chairman of Committees (Baroness Gould of Potternewton)
Before calling Amendment No. 142, I must inform Members of the Committee that, if Amendment No. 142 is carried, I cannot call Amendment No. 143 for reasons of pre-emption.
§ Lord Kingsland moved Amendment No. 142:
§ Page 62, line 16, leave out paragraph (d).
The noble Lord said: I believe that I am right in saying that Amendment No. 142 refers to Clause 92(1)(d). The issue concerns the way in which the Government intend to define the expression "the same category". That is dealt with in Clause 95(1), which says that,
two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State".
It is unsatisfactory that the matter should be dealt with by order; the categories should appear in the Bill.
Moreover, Clause 95(2) states that offences of the same category can merely,
consist of offences of the same type".
According to Explanatory Note 336, it will be sufficient for evidence to be admissible under the same type test if, for example, the old and the new offence are offences of violence. Therefore, to compound the admissibility of evidence of bad character, which does not go to any issue in the trial, Clause 95(2) allows for the admission of evidence of past offending, which in its detail may be remote from the offences in issue. I beg to move.
§ Lord Carlisle of Bucklow
I fully appreciate that, when dealing with the Committee stage of such a Bill, one often becomes confused as to the effect of particular amendments. However, I have always regarded this amendment as almost the most important of all in highlighting objections to the Bill. I support everything that the noble Baroness, Lady Kennedy of The Shaws, said. It seems to me that Clause 93(1)(d) will make it far easier than ever before to put in the evidence of a defendant's previous convictions. Like her, I ask myself why the Government are doing it. The only answer I can think of is that they want to increase the conviction level but not necessarily the justice of those convictions. If,evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged",is to be part of the future burden of proof, there is a real risk that many people will be convicted on the basis of their past rather than the offence they are alleged to have committed.
Is it seriously said that the trial of a 50-year-old man charged with burglary—perhaps he put his hand through a window on a summer's afternoon to take something that was readily available—could in cross-examination include evidence that, at age 14, with others, he committed an offence of burglary? Such a proposal reeks of the danger and possibility that people will be convicted on their past rather than on the evidence. Individuals and juries could well put undue importance on a person's previous convictions.
Such convictions could be put before the jury without the leave of the judge. It is true that subsection (3) says the court may not admit that evidence if there is an application by the defendant to exclude. However, those very words, as against the necessity of persuading the judge to allow the evidence to be introduced, imply that we are changing the burden of proof.
I listened with interest at an earlier stage to the speech by the Minister, for whom I have great respect and regard. She said that the Government are doing nothing here but putting into statutory form the rather complicated position concerning similar fact evidence. With respect, I think that they are doing more than that. They are not only putting it into statutory form; they are substantially reversing it by changing the burden of proof.
749 As has been made clear in almost all our debates this evening, beginning with that on the wording of Clause 90, the Government ought to look back and see whether they can relate the wording concerning admissible evidence of had character to that which currently applies in similar fact evidence. That requires two things. First, to be admissible, the evidence should he both relevant and probative. I do not find much reference to the words "relevant" or "probative" anywhere in Clause 93. That is why I said that, of this Bill as a whole with all its good parts and its bad parts, I believed the most disturbing was that which dealt with the wider ability to introduce defendants' convictions into an ordinary trial. I repeat that the danger is that it is motivated by a desire to see the number of convictions rise and to claim that as a success rather than by the justice of those individual convictions.
I am sorry that the noble and learned Lord, Lord Williams, is not present as I would have said this with greater ease if he were. I should love to know what would have been the reaction of the party opposite if a Conservative government had proposed matters of the kind we are discussing. We know where the noble Baroness, Lady Kennedy of The Shaws, stands on the matter. I suspect, although he is not here, that I might even know where the noble Lord, Lord Brennan, stands. Had a Conservative government proposed such matters, noble Lords opposite would have been out in the street howling about the extreme right-wing nature of a government that changed laws which had applied in this country for many years merely to attain a higher conviction rate.
I should particularly like to know where the noble and learned Lord, Lord Williams, stands. I remember when he was chairman of the Bar Council listening with some degree of infuriation to him speak morning after morning on the eight o'clock programme castigating the government of the day, which was a Conservative government. He said that the Bar Council was totally opposed to this or that measure which Michael Howard, or even milder people like the noble Lord, Lord Waddington, wanted to introduce. I did not necessarily always agree with the noble and learned Lord, Lord Williams, when he said that he spoke for the Bar Council as a whole. However, I cannot help feeling that if he were on the Back Benches of the Opposition at the moment, together with the noble and learned Lord the Attorney-General, for whom I have great regard, and the noble Baroness, Lady Scotland. for whom I have even more regard, they would quietly lead the objections to the changes that we are being asked to accept.
§ Lord Thomas of Gresford
I hope that the Committee will permit another Queen's Counsel from north-east Wales to speak. I note that the noble and learned Lord, Lord Williams, is standing behind the Bar. Perhaps he will speak on this matter. It is fundamental to the criminal justice system of this country that there is a presumption of innocence. That is where we all start from—that an offence has to be proved by the prosecution to the satisfaction of a magistrate or a jury.
750 If you introduce irrelevant past convictions into the equation, is it to be supposed for a moment that the presumption of innocence is the same for a man with those previous convictions as it is for a person of completely clean character? Of course, it is not. When you introduce something like that to distort the criminal justice system as it has grown up there will be miscarriages of justice. There have been so many well-known miscarriages of justice in this country over the past 10, 15 and 20 years that the confidence of the public in the investigation and prosecution of crime has been shaken. I am sure that my noble friend Lord Carlile of Berriew may have had the same experience, but, over the period of my professional life, I strongly suspect that acquittals are more readily to be obtained, particularly in certain parts of the country where miscarriages of justice have taken place because confidence in the police and in the investigation of crime and in the fairness of prosecutions has been undermined. Once you do that, you are hitting at the very root of justice.
We shall no doubt discuss the subsection in some detail at a later stage but noble Lords on these Benches wholeheartedly support the amendment.
§ 10 p.m.
I must point out before coming to paragraph (d)—the subject of the amendment—that it is in Clause 93(1), which refers to criminal proceedings in general. It does not make any distinction between those proceedings that decide guilt or innocence and those relevant to deciding on the sentence. That should be made clear. It could be quite easily done; we could have words at the beginning such as, "When deciding whether the defendant was guilty or innocent of the offence charged". What follows would be made clear, because on sentence we of course already have evidence of any previous convictions.
Paragraph (d) would be utterly unacceptable in achieving justice, and I warmly support what my noble friend said a little earlier. We get into a very confused situation if we do not regard the whole of subsection (1) as needing redrafting. When deciding innocence or guilt, we must stick to the present well-established system, which has achieved justice time and again.
Lord Carlile of Berriew
I agree with what has been said, particularly with the reasons given by my noble namesake about the importance of the principles at stake. If one reads Clause 93(1)(d) alongside Clause 95, as one must, it seems that a fundamental change is made by the provisions.
We have been using the noble and learned Lord, Lord Williams of Mostyn, as our template. Indeed, my noble friend Lord Thomas of Gresford and I have had the advantage of doing cases with and against the noble and learned Lord when we were all very much younger. I can almost hear the noble and learned Lord protesting to a judge, "But, my Lord, that only goes as to propensity. It is not evidence of the crime charged". The provisions, especially subsection (1)(d), make a presumption that evidence of propensity is evidence of 751 guilt of the crime charged. That is the absolutely fundamental change made here. It is a very dramatic change in the law.
The Minister cannot get away with trying to persuade this House—particularly this House, where there is a lot of experience of conducting criminal cases, which continues for many of us—that this is no more than a simplification or codification of the existing law to make it more comprehensible to ordinary people and juries. It is not. The Bar certainly does not think it is, and nor do solicitors. I am quite sure that the judges are as outraged as we are about it, and it promises immense and amoral complexity to the law.
§ Baroness Seccombe
I did not intend to speak in this debate, but it brought to mind an occasion when I sat as a magistrate on which we had been through all the formalities when a defendant was accused of theft from a shop. We came to the first witness—the owner of the shop. Having pointed out the defendant—the person connected with the offence—he was asked what drew his attention to the lady, to which the answer was, "I had seen her do it before". There was absolute consternation in the court, and the whole case was adjourned and had to be heard by another Bench. How glad I was, because it is so wrong that anyone, whether jurors or magistrates, should know about previous convictions.
§ Lord Mayhew of Twysden
The Minister was having a pretty torrid time tonight and conducted herself with her usual coolness, sang-froid and courtesy, but would she be good enough to say what the reason is for the change? Is it, as we were given to understand earlier, in order to make simple what is at present complex, or is it something else and if so, what?
§ Baroness Scotland of Asthal
I say straightaway that I understand the anxiety that has been expressed about the new change. I may not share it, but I understand it, because any time one embarks on what appears to be a significant change from that which is known, loved and accepted, it provides us all with a challenge. I empathise with the statements made thus far, but I would like to respond directly to some of the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew—this was touched upon by the noble Lord, Lord Carlisle—about the reason for the changes being made, and to seek to answer the noble and learned Lord, Lord Mayhew.
The changes have not been made in order to generate more convictions for convictions' sake. The Government are as committed and as passionate about justice as any who have already spoken in the Chamber. However, it is right that we want to bring more people to justice justly and fairly. It would be wrong to fail to recognise that there is the perception outside the Chamber that we have not been able to get the balance just right and that many do not understand what our rules are, not least because of the way in which they have developed over a period of time—we 752 explored that earlier in debates—and because we have had fragmented development, which has not always been easy to follow. We are making a genuine attempt to put those provisions in one place to make them accessible.
I have listened with great care to everything that has been said, not all of it with the temperance with which I would perhaps have been more comfortable, but I understand the passion of those saying it. Passion, quite often, is the odd bedfellow of temperance. While I understand that, it would be quite wrong and unjust to accuse the Government of seeking to rebalance the system in a pernicious and unfair way. That is not what we intend.
If noble Lords would care to do the exercise that I have sought to do, by going through each and every provision, they will be comforted to find that there is already authority supporting virtually all that is in Clause 93. However, it is right that in Clause 93(1)(d), the Government are making an attempt to broaden the issue a little further. Amendment No. 141, tabled in the name of the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, and spoken to so ably, as always, by the noble Lord, Lord Kingsland, would test the issue a little further. I have spoken in general terms about the new scheme.
Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and should therefore be admitted, unless their probative value is outweighed by their prejudicial effect. I know that sometimes, for the purposes of the beauty of the argument, it is almost convenient to forget about Clause 93(3), but we really should remember it because it is that which speaks of probative value. I take this opportunity to remind Members of the Committee of it because it states:The court must not—therefore, we have a mandatory provision—admit evidence under subsection (1)(d)"—about which we are now talking—(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".As I said earlier, that drafting of Clause 93(3) is drawn directly from Section 78 of PACE. The drafting has already been considered and interpreted to include the test in the common law under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in this way and will be clear, rather than adopting a new form of words which may cause confusion.
Therefore, to be read into Clause 93(1)(d) is that nothing that falls within that category could or should be admitted unless it complies with the injunction set out in Clause 93(3)—that is, its probative value should outweigh its prejudicial effect. That is a principle with which we have all been comfortable for a very long time and have become increasingly so as the jurisprudence has developed.
753 I believe it would be quite unjust, even if one were to differ on whether it is right to go one stage further, as Clause 93(1)(d) appears to do, to say that that is for some pernicious or ill intent. It is not. The court still has the ability to hold burden.
However, I do not believe that we should run away from the idea that the things included in Clause 93 do not already impinge on the way in which our courts operate. They are an expression of the jurisprudence which we all respect and by which, if we are practitioners, we are bound.
As I said, the test is designed to reflect the existing position. Therefore, Clause 93(1)(d) and, indeed, our intention in including it in legislation is to create a presumption that certain convictions are relevant and should be admitted. That would not be conclusive but would provide a clear starting point for admissibility that reflects the reality of the operation of the similar fact rule.
I am aware that a separate amendment has been tabled specifically to limit this clause to convictions for the same offence and to remove the inclusion of convictions for a similar offence. That is Amendment No. 143 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay, who I see nodding her assent. Although that amendment is in a different group, the amendment that we are considering—Amendment No. 142—would remove the admissibility of a conviction for both the same offence and a similar one. Therefore, perhaps I may say a few words about similar offences.
The case for extending this provision to convictions for similar offences is strong. Their probative value may be just as strong as convictions for the same offence—for example, if someone has previously committed actual bodily harm, the fact that he had previous convictions for grievous bodily harm should be admissible just as readily as a previous conviction for actual bodily harm. That is the case as the probative value lies not in the fact that the defendant committed that particular crime but in the nature of the offence. In this case, the probative value lies in the violence of previous offences.
§ Lord Thomas of Gresford
Does the Minister not agree that that simply goes to propensity? We have always turned our face against evidence of propensity. 754 All she is saying is that the fact that you have assaulted someone before just proves propensity to assault somebody else.
§ Baroness Scotland of Asthal
It does not go just to propensity. Indeed, the noble Lord will know that there are many cases that currently allow such evidence to be admitted. We are not going significantly further than that. As I say, the law in this area has been beset with complexity and confusion. The new statutory scheme is intended to set out a clear and predictable set of rules.
Clause 93(1)(d) promotes that aim by providing a clear and simple route to admissibility that will assist the courts and practitioners alike. I emphasise that Clause 93(1)(d) will remain subject to Clause 93(3), which means that probative and prejudicial have still to be weighed in the balance. That is an issue on which the judges of this country have always been entrusted with the ability to determine. I think that noble Lords in this debate will agree with me that they have determined it in a way which has always inured to the benefit of justice.
§ Lord Kingsland
I am much obliged to the noble Baroness. What she seems to be saying in a nutshell is, "Yes, Clause 93(1)(d) does go beyond the existing law"—I would suggest that it goes way beyond the existing law—"but we should not really worry about that because the defendant will have the protection of Clause 93(3) in relation to (d)".
That may or may not be true. We shall consider Clause 93(3) on another occasion not, I trust, tonight. But that is no excuse and no justification for the way that Clause 93(1)(d) has been drawn. It will allow offences that have nothing whatever to do with the offence with which a person is charged to be brought in evidence against them. Quite apart from the general principle of doing that, I can see no justification for the Government expanding the geography of the definition of had character to that extent.
I shall not invite the Committee to divide on this matter now. I beg leave to withdraw the amendment but I shall certainly return to it on Report.
§ Amendment, by leave, withdrawn.
§ House resumed.
§ House adjourned at eighteen minutes past ten o'clock.