Clause 84 - Defendant's bad character
Criminal Justice Bill
4:00 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
It is difficult to compartmentalise one's arguments, even within clause 84, which is governed by clauses 85 to 90. Those clauses go into considerable detail about what constitutes the various matters listed in paragraphs (a) to (h) of clause 84(1). We are slowly feeling our way to the nub of some of the issues, although I detect a tendency to slip away from it because of the mischief of clause 86 and the matter of propensity.
As my hon. Friend the Member for Woking explained, the traditional rule is that apart from restricted exceptions in the case of similar fact evidence, evidence in relation to a defendant's character refers only to his credibility. My hon. Friend read out the direction that is given to the jury, which will presumably have to be substantially changed after the Bill is enacted. I suspect that in most cases applications will still be made under that rule, but key paragraphs of the clause are not protected by
subsection (3), which balances the adverse effect on the fairness of the proceedings, giving a discretion for matters not to be admitted. Read in the light of that rule, clause 84 gives rise to serious concern.
The issue of bind-overs was mentioned, and I shall take an example from personal experience of a case in which the defendant was charged with robbery, which is rather a serious offence. He was brought up in front of the red judge, at what used to be the assizes—a Crown court in Shropshire. The allegation was that he had robbed two 14-year-old boys of their watches, but the facts were that the two boys, having gone on a fishing trip, had seen the defendant's vehicle parked by the side of the lake and committed an act of criminal damage on the vehicle. They smashed the wing mirrors and kicked and dented the side.
The defendant came back from his afternoon's fishing and was very angry about the damage to his vehicle. He threatened to hit the two boys with a stick and then took their watches from them in compensatory payment for the damage they had caused to his vehicle, exercising what I suspect he thought was a bit of rough justice. He was a man of impeccably good character of whom everybody spoke highly, and he lived in modest circumstances. The trial came up in front of the judge, who took one look at the papers and roared with laughter. He summoned the boys to court and bound them over to keep the peace and be of good behaviour for 12 months.
If, two years later, that person were to come to court on any offence, what would be the significance of that episode under the present rules? The answer is that it would be regarded as completely irrelevant. He would be treated as a person of good character. He could say in the witness box that he was a man of good character with no previous convictions, and I am sure that the prosecutor would not try to gainsay it. However, clause 84 opens the possibility of that episode having significance. More interestingly, subsections (1)(c) and (g) will allow that to take place without bringing into play the adverse effect protection of the fairness of the proceedings, which would allow the judge to prevent it happening.
If the Minister were minded to include the protection of subsection (3) for all the paragraphs in subsection (1), I would be much happier with the proposals. As I am trying to be constructive, he may want to reflect on that, and I would be interested to learn why that could not be done. One must accept that if one gives people the opportunity to exploit a new rule, it will be exploited. Prosecutors will use it, under pressure from the CPS, so the idea that the old rule will prevail except in exceptional circumstances is flawed. If the court has no ability to fetter the prosecutor's discretion in giving a false impression, evidence about something that is profoundly irrelevant may be admitted. The Minister would go some way towards satisfying us by reviewing the protection afforded by subsection (3) and extending it to all the categories in paragraphs (a) to (h) in subsection (1).