Clause 83 - Non-defendant's bad character
Criminal Justice Bill
3:00 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
The Minister has gone some way to satisfying me on witness credibility; I remain more concerned about the lack of equivalence between the two provisions. He made an interesting point: for defendants, the probative value of evidence must not be outweighed by the prejudicial effect. That is the basic test. Why, however, should the same test not be applied to witnesses? After all, clause 83 says that it should be possible to cross-examine a witness about their previous bad character if that has a probative effect, although one must consider the prejudicial effect that it would have on anybody to have their past bandied about in court when it could be irrelevant to the issues that the jury must consider. That is the protection that we are trying to provide.
I have sympathy with the Minister when he says that it is a matter of public concern if the frequency with which witnesses' previous bad character is introduced into court is such that the public begin to wonder about its relevance; and when it starts to deter people from giving evidence in court. Both are undesirable. Of course, one must accept that it may be inevitable that if a witness has an appallingly bad character he will be deterred from giving evidence by the fact that that bad character must come out in court in order that justice be done. The interests of the defendant must be favoured if we are to maintain a fair trial system. We cannot have a system in which the courts say, ''In order to protect this witness from adverse publicity and the humiliation of having his bad character revealed when he is giving evidence, it is necessary to conceal that bad character in a way that would be prejudicial to the defendant.'' I am sure that the Minister will agree that that would be utterly undesirable.
Oddly enough—or perhaps inevitably—I remain unpersuaded that the lack of equivalence is justified. The test of probative value as against prejudice applies just as well to the defendant as to any other witness. When judges sum up a case they often point out to the jurors that the defendant is no different from any other witness who has given evidence and that they should treat him no differently in assessing what he has said. Indeed, it should be a central feature of our courts
system that a witness is a witness whether he is a prosecution witness, a defence witness or anybody else.
One has only to go round the courts in this country to see how prosecution witnesses are treated completely differently from defence witnesses when it comes to the accommodation and attention that they are paid by the court staff. They are provided with discrete accommodation, nice magazines and endless supplies of coffee, while the poor old defence witness is relegated to some cubby-hole with graffiti on the walls in which he is detained until he goes into court to give evidence. This is quite a serious matter. Any visit to a magistrates court, which I recommend to the Minister, will reveal that fact very clearly.
I do not like this distinction. Ultimately, we are testing witnesses—whether defendant or another witness—and deciding what is acceptable. The probative against the prejudicial is an excellent test, which I heartily endorse. I certainly do not want witnesses to be cross-examined on their previous character when that is irrelevant. It is the judge's duty to prevent the harassment of witnesses. Prosecution or defence counsellors who do so should be pulled up. One problem over the years has been the judiciary's increasing reluctance to manage trials. That is the fault of the Court of Appeal, which has been allowing too many appeals. When a judge finally told a defence counsellor who was misbehaving that he could not ask a particular question, it was the grounds for an appeal that was subsequently allowed.
Counsel, particularly defence counsel, have abused their rights to cross-examine. In the old days, judges would have pulled them up, but that no longer happens, which is unfortunate. I am not sure that the proposed devices do not contain seriously damaging flaws. Although I reserve my position on the clause, which I will consider again in a moment, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 83 ordered to stand part of the Bill.