Clause 84 - Defendant's bad character
Criminal Justice Bill
3:15 pm
Mr Humfrey Malins (Woking, Conservative)
I think that the Committee will agree that our major debates today concern this clause. The Home Affairs Committee, which rightly said that the issue of bad character was the most controversial part of the Bill, identified an area that has troubled us from the beginning of the debate this morning. ''Bad character'' is defined in clause 81, and we deal now with the bad character of the defendant and its admissibility in court proceedings. With amendment
No. 325 we are trying, yet again, to restrict the definition of bad character to the issue of previous convictions. There are many reasons for wishing to do so.
At some stage, the Minister must explain why on Monday, Wednesday and Friday he applauds the work of the Home Affairs Committee and says that it was right, but on Tuesday, Thursday and Saturday he takes the view that it has come up with the wrong answer. He knows as well as I do that it is utterly unhappy with the Government's proposals.
We expounded arguments in this morning's debate on why bad character should be limited to previous convictions. Let us dwell on the issue for a moment, and transport the Committee to the Crown court where the judge is summing up the case for the jury. While the defendant has been giving evidence, his barrister has said to him, ''Now, Mr. Smith, you are 50 years old, you have never been convicted of any criminal offence, and you are therefore a man of good character. You also do a lot of good work for your church and for other people.'' The defendant has agreed with all those statements. The judge then says to the jury at the end of the trial that the defendant is a man of good character, not just because he has no convictions recorded against him, but because witnesses have spoken of his positive qualities. That is a standard form of direction of the jury, approved by the Court of Appeal.
Good character cannot by itself provide a defence to a criminal charge, but it is evidence in the defendant's favour that a court should take into account, and for two reasons. First, the defendant has given evidence and, as with any man of good character, that supports his credibility. Secondly, the fact that he is of good character may mean that he is less likely than otherwise might be so to commit the crime now—the issue of propensity.
An important note attached to my briefing states:
''If the judge rules that a defendant should be treated as a man of good character even though strictly speaking he is not (for example because he has spent convictions), the full direction on good character should be given to the jury.''
Ponder that, Mr. Cran, and compare it with that with which we are currently faced.
The clause provides, in paragraph (g), that evidence of the defendant's bad character should be admissible if
''it is evidence to correct a false impression given by the defendant''.
Is the defendant giving a false impression when, through his counsel, he answers, ''Yes'' to the question, ''Is it right that you are a man of good character and have never been convicted of any criminal offence?'' Where is the protection for the defendant? One hastens to look at subsection (3), which states that the court must not admit evidence where it is prejudicial. However, that does not apply to the issue of correcting a false impression given by the defendant.
The wide definition of character includes, as we have heard, the person who has tended to show that he
''is disposed to behave in a way that . . . might be viewed with disapproval.''
The hypothetical person standing in the dock to whom I have referred might have been subject to a civil injunction concerning a matrimonial or neighbourly dispute, to a bind-over in any number of courts, or to an antisocial behaviour order, which is not a criminal conviction.
The Minister is saying that from the moment the Bill becomes law, the person who has been bound over, or been subject to an injunction or an antisocial behaviour order, but who has no criminal conviction against him, cannot in response in court to his barrister's saying, ''Is it right, Mr. Smith, that you have never been convicted of any offence, have you, and are therefore a man of good character'', say ''Yes.'' That is astonishing.
The direction that is currently given by the court in relation to bad character is interesting. The judge is obliged to say to the jury:
''You have heard that the defendant has previous convictions (for x, y, z). What is the relevance of the defendant's convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has previous convictions.''
These are the key words:
''His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now.''
The first part bears repetition. His convictions
''are not relevant at all to the likelihood of his having committed the offence''.
They are relevant only as regards his credibility and have nothing to do with propensity. The Minister is going to have to answer this question. The wide-ranging first line of the clause refers to the admissibility of the defendant's bad character, even if it is limited to previous convictions, as it should be for the reasons that I have given. Is admissibility of bad character relevant to the likelihood of his having committed the offence? Is it relevant to propensity as opposed to credibility?
I want to conclude, because we need to have serious debates about a series of groups of amendments. My proposition is that the scales are now tilting against the defendant. The presumption of innocence that we have held very dear for very long is gradually being chipped away at. It is odd, but in most jury trials—this is really anecdotal—the defendant will have had previous convictions. It is rare for someone to come before the court with no previous convictions. The old presumption of innocence, whereby the defendant has to be tried on the evidence that is before the court, is disappearing slightly. It will be replaced.
Peter Rook QC, Chairman of the Criminal Bar Association, spoke to the Home Affairs Committee about the problem of a weak identity case. Let us take the case of a person who is charged with burglary. The identification evidence is not very strong but the chap has a string of previous convictions and the police take their eye off the ball. The jury immediately becomes
deflected from the real issue—the evidence in the case against the man—because there are previous convictions. If the issue of previous convictions raises problems, to widen it to bad character leads to an enormous potential for prejudice against the defendant.
It used to be said that if one did not have a criminal conviction, that was much to one's credit, and it was to be said in one's favour in open court. It can no longer be said. It is as simple as that, because as soon as someone starts putting himself forward as a person of good character, they can get him under paragraph (g) because he has given a false impression. The problem is that there is no way out of that. That is the reason for the amendment, and I hope that it prompts a stimulating and furious debate.