Clause 85 — Defendant's Bad Character

Part of Criminal Justice Bill – in the House of Commons at 7:00 pm on 2 April 2003.

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Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation) 7:00, 2 April 2003

I am grateful for that clarification from my hon. and learned Friend.

During the debate, the Government were accused of a number of things in introducing the clause and the Bill. I want to put it on record that it is not our intention that the clause should be used, to pick up a concern expressed by my hon. Friend Mr. Mullin, to round up the usual suspects. I acknowledge his expertise on the subject, which is probably greater than that of all other hon. Members, gained as a result of work that he has done for many years on miscarriages of justice. However, that is not the intention of the clause—it is not about trying to prejudice juries; it is not about trying to damage the rehabilitation of offenders; it is not about undermining the principle of innocent until proven guilty; and, to repeat a point that I made in the last debate, it is not about the prosecution no longer having to prove their case beyond reasonable doubt. The clause is intended to get the balance right.

There was wide agreement during the debate that the current law potentially provides for a large amount of bad character evidence to be admissible. That was accepted across the House. No one argued that that should not be the case. The question is whether the current arrangements for determining when bad character is admissible are satisfactory. All the evidence suggests that they are not. Those who have examined the issue—the Law Commission, Lord Justice Auld and others—have, if I may sum up in three words, described the present situation as haphazard, inconsistent and unpredictable. In other words, the current arrangements are a mess. That must be the starting point on which we are all agreed.

If we are agreed that the current system is a mess, it needs to be sorted out. The question that we are debating is, in essence, how evidence should be put before juries so that they can judge it in reaching their verdict. Three main issues came up during the debate. The first was whether we should have an inclusionary or an exclusionary approach. The second, which was touched on by the amendment of my hon. Friend Mr. Kidney, was whether leave should be applied for. The third was to which categories of bad character evidence should the safeguards in clause 85(3) apply.

I shall try to address each of those issues in turn, but to illustrate the argument I shall refer briefly to two real cases. In Committee I cited the example of a High Court judge who was dealing with a horrific murder case involving a woman who was stabbed 81 times. The defendant in that case had previous convictions for using a knife and for beating people. Reflecting on the experience of presiding over that case, the judge wrote:

"It's a classic case of where you might argue that previous convictions should be admitted to the jury. The more I sit as a judge, I think that we trust juries with so many important decisions, why not a defendant's background? It's something I've changed my mind about since I was Counsel."

I would say to Mr. Llwyd that the point about that judge's experience is that, in that case, that evidence was not included.

The second case was mentioned by one of my hon. Friends. Last month there were reports of a case concerning the alleged rape of a woman by a doctor. In the trial the complainant had not been allowed to give the proper circumstances of her story because that would have involved revealing to the court the doctor's convictions for sexual assault in respect of nine other patients. To add insult to injury, the complainant was cross-examined about a child whom she had adopted 36 years previously, the taking of a valium tablet, and an alleged sterilisation operation. In the light of her treatment, she said afterwards:

"I feel the law's got to be changed because had I been able to tell the whole truth I feel sure the jury would have seen a totally different picture. Something is wrong with the way the system is working. Having first-hand knowledge of the system I now understand why."