With this it will be convenient to discuss the following:
Amendment No. 30, in page 54, line 13 leave out
'admissible, if, but only if' and insert 'not admissible, unless'.
Amendment No. 33, in page 54, leave out lines 15 to 27 and insert
(b) it has substantial probative value in relation to an important matter in issue between the defendant and a codefendant.
(1A) In criminal proceedings evidence of the defendant's bad character is admissible with leave of the court if it is relevant to a matter in issue in the proceedings and—
(a) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(b) it is important explanatory evidence,
(c) it is 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,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it is evidence to correct a false impression given by the defendant, or
(f) the defendant has made an attack on another person's character.
Amendment No. 168, in page 54, line 19, leave out paragraphs (d), (e) and (f).
Amendment No. 133, in page 54, line 19, leave out paragraph (d).
Amendment No. 34, in page 54, line 28, leave out 'subsection (1)' and insert 'subsections (1) and (1A)'.
Amendment No. 35, in page 54, line 29, leave out '(1)(d), (e) or (h)' and insert '(1A)(c), (d) or (f)'.
Amendment No. 126, in page 54, line 29, leave out '(d), (e) or (h)' and insert
'(c), (d), (e), (f) or (h)'.
Amendment No. 23, in page 54, line 30, leave out from third 'the' to 'that' in line 32 and insert
'potential probative value of such evidence is so outweighed by its prejudicial effect'.
Amendment No. 24, in page 54, line 33, leave out subsection (4) and insert—
'(4) In considering the probative value of such evidence the court is to have regard, in particular, to
(a) the extent (if any) to which the evidence tends to suggest that the defendant has a propensity to act in the specific manner alleged;
(b) any similarities between the facts revealed by the evidence and those now alleged;
(c) the extent to which any similarities may be attributed to coincidence;
(d) any dissimilarities between the facts revealed by the evidence and those now alleged, and
(e) the passage of time between the matters to which the evidence relates and the matters now alleged.
(4A) In considering the prejudicial effect of such evidence the court is to have regard, in particular, to
(a) the risk of the tribunal of fact attaching undue significance to the evidence in question in determining the defendant's guilt;
(b) the risk of the tribunal of fact convicting the defendant on the basis of his previous conduct rather than because they are satisfied of his guilt in relation to the matters now alleged;
(c) any disproportion between the gravity of the conduct revealed by the evidence and the gravity of the matters now alleged; and
(d) the risk that such evidence will confuse or distract the tribunal of fact.'.
Government amendment No. 134A.
Amendment No. 125, in page 54, line 38, at end insert—
'(6) A person shall not be convicted of an offence solely on the basis of evidence of his bad character.'.
Amendment No. 51, transfer clause 89 to end of line 38 on page 54.
Amendment No. 36, in clause 86, page 54, line 40, leave out '(1)(c)' and insert '(1A)(b)'.
Amendment No. 134, in page 55, line 1, leave out clause 87.
Amendment No. 37, in clause 87, page 55, line 2, leave out '(1)(d)' and insert '(1A)(c)'.
Government amendment No. 95.
Amendment No. 38, in clause 87, page 55, line 11, leave out '(1)(d)' and insert '(1A)(c)'.
Amendment No. 39, in clause 88, page 55, line 13, leave out '(1)(e)' and insert '(1A)(d)'.
Amendment No. 40, in clause 88, page 55, line 22, leave out '(1)(e)' and insert '(1A)(d)'.
Amendment No. 41, in clause 89, page 55, line 25, leave out '(f)' and insert '(b)'.
Amendment No. 42, in clause 89, page 55, line 32, leave out '(f)' and insert '(b)'.
Amendment No. 43, in clause 90, page 55, line 34, leave out '(1)(g)' and insert '(1A)(e)'.
Amendment No. 44, in clause 90, page 56, line 21, leave out '(1)(g)' and insert '(1A)(e)'.
Amendment No. 45, in clause 90, page 56, line 23, leave out '(1)(g)' and insert '(1A)(e)'.
Amendment No. 46, in clause 91, page 56, line 25, leave out '(1)(h)' and insert '(1A)(f)'.
Government amendment No. 135.
Amendment No. 47, in clause 91, page 56, line 43, leave out '(1)(h)' and insert '(1A)(f)'.
Amendment No. 48, in clause 92, page 57, line 3, leave out from 'under' to 'and' in line 4 and insert
'paragraph (b) of section 85(1) or any of paragraphs (b) to (f) of section 85 (1A),'.
Amendment No. 49, in clause 91, page 57, line 25, leave out from 'under' to 'and' in line 26 and insert
'paragraph (b) of section 85(1) or any of paragraphs (b) to (f) of section 85 (1A),'.
Amendment No. 50, in clause 96, page 58, line 30, leave out '(f)' and insert '(b)'.
Government amendments Nos. 96 and 138.
Amendments Nos. 29, 30 and 168 are Liberal Democrat amendments. I am conscious that amendments that colleagues from other parties have tabled are in the same group.
We believe that we are embarking on today's most important debate on the Bill. We are considering whether evidence of a defendant's bad character in the criminal courts should be admitted and if so, under what circumstances. The amendment would remove clause 85, which changes the current rules for the worse and alters the historical position of the courts in England and Wales that a defendant's bad character is not generally used as evidence. Under the Bill, such evidence would be used much more frequently.
We could have tabled many amendments. In Committee, we sought to amend clause 82, which defines bad character, and clause 85 and others. In common with Conservative Members, we argued strongly that the right to a fair trial depends on the evidence relating to the case before the court, not the evidence pertaining to aspects of a person's previous life. Some evidence pertaining to considerations that go much wider than criminal convictions will be admissible under the Bill, and we believe that that aspect of the Government's proposals poses the most serious threat to a fair trial.
The hon. Gentleman said earlier that he was in favour of codifying existing law, and much of clause 85 is about codifying the legal admissibility of evidence relating to bad character. If he opposes only some aspects of bad character being admissible, would it not be better to amend the provision rather than scrap it completely as the Liberal amendment suggests?
That is a perfectly reasonable proposition. I have said on the Floor of the House and elsewhere that our party would be happy to seek agreement with the Government and Conservative party on the codification of the criminal law. We have two amendments to clause 85. One sets out our preferred option, which is to remove the provision entirely and start with the presumption that evidence relating to previous bad character should not be admissible. The clause gets off on the wrong foot by presuming that such evidence should be admissible, which is why merely amending it would not suffice. If we lose that argument—we are aware that we will lose the vote today, but we might not lose so readily in the other place, where the Government do not have a majority—we have a second proposition before the House, which would remove paragraphs (d), (e) and (f), which are the most iniquitous in the list of exceptions.
The amendment tabled by Vera Baird would remove paragraph (d), which we view as the worst of all, so we would support her amendment if pressed to a vote. We would prefer to go further, but I see in their places the Chairman of the Home Affairs Committee and other Labour Members who recognise the iniquity of that part of the proposal, and we would join forces with them, too. The Conservative amendments do not go as far as we would wish and we were nervous of supporting them for fear that it might prejudice our stronger and better amendment, but, depending on the Government response, we might be able to support some of them.
There is widespread opposition throughout the House—from members of the Home Affairs Committee, Labour Back Benchers and both main Opposition parties, and, indeed, from Lady Hermon on behalf of her party and from the two nationalist parties—to the Government's proposals. We should emphasise that those proposals are strongly objected to both inside and outside Parliament. I hope that the Government will hear the opposing voices and realise that they cannot deliver their proposal through Parliament. The sooner they recognise that and accept that their proposals represent a dangerous threat to the rights and liberties of defendants, the sooner we can engage in an honest and constructive debate about the best way of codifying this part of the law, as Mr. Cameron suggested.
It would be dangerous to allow evidence of bad character to be put before a court as often as the Government suggest because it would mean that people would be judged on their previous history rather than on evidence pertaining to the case before the court. Before I define the wider aspects of bad character, I want to explain why that is so dangerous. Wittingly or unwittingly, when the police are trying to find someone who has committed a crime, they will think about people found guilty of similar crimes in the same area. They are bound to do so: that is a perfectly proper aspect of policing. Sometimes, however, after an initial investigation of the evidence, it is difficult to find the person who is obviously guilty of the crime. Investigations can go on for a long time, with the police getting more desperate to bring someone to book. I understand that too.
If it is possible for the police to bring previous bad character before the jury, it will be much easier for them to go down the route of the usual suspect. There will be an incentive for the police to say, "We know character X has done this sort of job in this area 17 times before. Let's pull him in and question him, because he is the best idea we've got."
When the Crown Prosecution Service comes to look at the evidence, it has to decide only whether the chance of conviction is better than 50 per cent., and whether it is in the public interest to prosecute. If the CPS knows that previous bad character will be brought into play, it may decide that the chance of conviction is better than 50 per cent. as the jury will hear about the defendant's previous bad character. The CPS may believe—I hazard the suggestion that it always will believe—that it is more likely that a person will be convicted if the jury knows that he or she has previous convictions.
Few people would consider a jury less likely to convict if its members knew that a defendant had previous criminal form. Regular offenders—the usual suspects—are therefore much more likely to be at risk. That means that the people who have form—who have committed offences and been tried and convicted, but who have gone straight and tried to rebuild their lives—will be at much more risk of being brought back to court, tried and wrongfully convicted. There have been far too many such examples throughout out legal history.
Is the hon. Gentleman aware of the research undertaken at Birmingham university for the Lord Chancellor's Department? Sally Lloyd-Bostock, professor of law and psychology, showed conclusively that juries are biased by learning about previous convictions for similar offences.
I am aware of that research. It is not the only research on the matter. To my certain knowledge, the Home Office has done similar research, I think in 1995. Ministers accepted that research as relevant, and it comes to exactly the same conclusion.
My second point relates to a matter that arose in the previous debate. Juries could be given people's previous life histories. We could believe that juries, on hearing the judge's direction, would focus only on the matter in front of them—that is, in the charge before the court. However, juries are not perfect either. Like the rest of us, they are open to recollection of things that they have heard or seen. All the evidence and all one's instincts suggest that allowing a defendant's bad character and previous convictions to be referred to much more frequently is bound to have the prejudicial effect that the research suggests.
That will be especially true in the more sensitive and controversial cases. For example, a person who was guilty in the past of a serious sexual offence such as rape or indecent assault might be brought before the court again. Understandable and proper public disapprobation and disgust about the previous offence mean that jury members cannot help but have that offence in mind as they hear the evidence in the new case. I cannot see how, even with all the encouragement in the world from the judge, they would be able to eliminate that previous conviction as they thought about whether the evidence meant that the person was guilty of the new offence. Knowledge of previous cases must colour the jury's perception of the person and of the charge.
The other argument is that reference to previous convictions should be allowed because a person who has robbed a petrol station six times shows a propensity to rob petrol stations. If the case before the court is a petrol station robbery, that propensity might be taken into account. However, the conclusion may not be valid, depending on how long ago the previous offences took place, and on whether the defendant was on drugs at the time, for example. Other questions involve whether that person had given up drugs since those previous offences, or whether any treatment that he received was effective or otherwise. Equally, though, other people with the same propensity will not have been pulled up before the court, so the arguments for the provision are weak indeed.
If present law stated that one could never introduce bad character, there would be a strong argument for the provision, but the law does not state that; it allows bad character to be introduced in all sorts of circumstances, as we all agree. For example, it is introduced when a defendant brings it into play—when a defendant attacks a witness for the prosecution, whether it be a police officer or anyone else, they automatically lift the veil on their own character, which gets into the frame. Similarly, it is introduced when there is similar fact evidence—most commonly, in sad and awful rape cases involving a serial rapist who is always associated with, for example, gloves, clothes, or a certain time of day, or who always attacks a certain type of person. If there is such a set of characteristics, it can be used in court. That argument is proper and acceptable but the evidence has to be directly, not indirectly, relevant. Sadly, the clause goes beyond that.
We want the clause to be amended. The proposals go far too wide. The list in clause 85(1) contains three proposals that would allow almost anything in, subject to the qualification of judicial oversight. The first is that
"In criminal proceedings evidence of the defendant's bad character is admissible if, ... (d) it is 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."
That means that if anyone once takes a car without consent, steals, robs or assaults, that can be used in court, as it would be evidence of
"conviction for an offence of the same description".
Secondly, a previous conviction can be used if
"it is relevant to an important matter in issue between the defendant and the prosecution."
Many issues are important matters that are disputed between the prosecution and the defence. That provision would allow a great swathe of previous evidence of bad character to be used. The defendant would have to show why it should not be admitted. The presumption would be that it should be.
Thirdly, such evidence would be allowed if
"it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant."
Another tranche of previous bad character could be admitted on that basis.
That is why the second of our amendments to clause 85 would delete those three provisions. The provisions in clause 85(1)(a), (b) and (c) are reasonable. They involve evidence that both parties agree is admissible or that is used because the defendant's bad character comes into play—one cannot expect other people not to put one's character into play in that case. Thirdly, it is important to explain things. Those provisions are reasonable, whereas those in clause 85(1)(d), (e) and (f) are not.
I hope to persuade colleagues how dangerous this provision is. If it was only a matter of previous convictions, that would be difficult and dangerous enough. However, clause 82, states:
"For the purposes of this Chapter, evidence of a person's bad character is evidence which shows or tends to show either that . . . he has committed an offence, or"— this is the wider and even more dangerous proposition—
"he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person."
Someone might have got drunk, which might be relevant and could be used in court in an action if the charge was acting under the influence of drink. Someone might have been unfaithful to their spouse, which is quite properly not a criminal offence but might be used as evidence against them if they are charged with a sexual offence involving someone who is not a member of their family. Someone might have lost their job because of a row about whether they had behaved honestly. That could be used as evidence if the charge was dishonesty.
One of the great abiding characteristics of the justice system in this country is that one is judged on the merits of the case that is brought to the court on the day that one appears as a defendant. The right to a fair trial is one that all of us may need at some stage. Nobody ever knows when they will be charged or arrested, or when they may find themselves as a defendant in a case. It is not a right for minorities only and it is not a right for the regular suspects only; it is a basic right that is upheld in domestic law and respected by the international legal conventions in Europe and beyond. In our view, if the right to have one's previous history generally excluded is taken away, and if the guarantee that one will be judged on the evidence that is brought by the prosecution in the court is taken away, there are huge dangers of regular, unfair convictions and of people being retried for things for which they have served their time in some way or another in the past. That is a very dangerous road to go down. We hope that the House will accept amendment No. 29, and we hope that the House will ask the Government to think again.
I have amendments in this group, starting with amendment No. 33, which are not quite so drastic as the Liberal Democrats' proposal to delete the whole of clause 85 and not quite so mild as the Government's position. I am steering a middle way, which should attract the Minister to my proposal.
The Government are sometimes unfairly portrayed outside the House as introducing measures that will allow juries access to people's bad character in circumstances where that is not at present admissible. That portrayal is not quite correct. Evidence of bad character has been admissible for more than 100 years. It is important that we understand that the law has developed in that way. At the moment, there are three circumstances in which such evidence may be heard: first, if the facts of a previous incident are so strikingly similar to the facts of the case before the court that there must be something more to it than coincidence; secondly, if the defendant asserts good character whereas, in fact, the defendant does not have good character; and, thirdly, if the defendant attacks the character of another witness—usually a prosecution witness—and therefore becomes open to having his or her own character attacked through bad character evidence as well.
Those are the circumstances in which evidence can be heard; I now want to talk about what evidence can be heard. Bad character evidence covers more than previous convictions—that is an important point, because some people do not appreciate it. Acquittals were held to be admissible in a case called Z; and evidence which the judiciary now calls "background information" was held to be admissible—whether that involves a previous conviction, an acquittal, or neither of those, but something else that suggests that it is relevant—in cases called Stevens and Dolan.
What is wrong with the Liberal Democrat amendment to delete the clause and leave the law as it is? To answer that, I turn to report 273 of the Law Commission, which did a good job on our behalf of analysing the present state of the law. It found, first, that the law is in lots of different places and is difficult to find; secondly, that the law is in rather obscure language and is difficult to interpret; thirdly, that judges have inconsistently applied the provisions in the past; fourthly, that, as a result of a combination of factors, evidence is not being admitted in lots of cases where it really should be, to help the court to make its final decision; and, finally, that, because the situation is not satisfactory, judges are developing their own law. I have just referred to some case law that shows areas where judges have started to allow evidence to be admitted in ways that are not covered in any previous Acts of Parliament.
The Law Commission did a pretty good job of convincing us of the need for reform. Codification was mentioned earlier. The Law Commission drafted a Bill that brought all the provisions into one place, and I commend the draft Bill to those who have not seen it. I think that it is excellent. If I could adopt it wholesale, in place of the Government's provision, I would. My amendments are inadequate to replace the Law Commission's excellent draft Bill.
The structure of the Law Commission's draft Bill is based on the premise that there are some circumstances where evidence of bad character should always be admissible. It describes one as being where it concerns the central facts of the case before the court and goes on to describe the two about asserting good character and challenging other people's characters effectively. The Law Commission felt that it should be stated that those are admissible in every case, but that in every other situation the leave of the judge should be the gateway to allowing such evidence to be admitted in any trial as evidence against the defendant. That is the point of my amendments and the opinion that I hold.
The Law Commission's view was that leave of the court should be sought in every case except for those few that I mentioned. I had thought that that was the position taken by the Government following their comments in the White Paper, "Justice for All", paragraph 4.56 of which states:
"We favour an approach that entrusts relevant information to those determining the case as far as possible. It should be for the judge to decide whether previous convictions are sufficiently relevant to the case, bearing in mind the prejudicial effect."
There was I thinking that the Government agreed with the Law Commission that leave of the court should always be sought.
What are the dangers of more routinely admitting evidence without leave of the court? Simon Hughes drew them out clearly. For a jury, there is the danger of false logic—that because the person has previous convictions, he or she must have committed the offence that is before the court. There is also the danger of prejudice—that because the person has been convicted of something dreadful in the past, he or she must have committed the offence that is before the court. I am talking about juries, but magistrates try many cases and would thus hear evidence of previous convictions.
The hon. Member for Southwark, North and Bermondsey mentioned the research that has been carried out. It is referred to as the Oxford research, because it was carried out at Oxford university, not at Birmingham university. The research tested whether mock juries who were presented with situations involving disclosure of previous convictions were prejudiced: the answer was overwhelmingly yes. The annexe to the Law Commission's report contains an update of the Oxford study, whereby 222 magistrates were put in the same position as those jury members to find out whether they were prejudiced by previous convictions: the answer was yes, to about the same extent as the jury members.
The only difference between the two studies was that, in the question about prejudice resulting from previous convictions, jury members were very prejudiced if they learned that someone had a previous conviction for indecent assault on a child, so whatever the offence before them, the person was considered guilty if they had such a conviction. Magistrates took a different view—a section 18 assault made them very prejudiced against the accused whatever the charge before them. With that one difference, it is a danger for all defendants.
The hon. Member for Southwark, North and Bermondsey dealt with the other two dangers of more routinely admitting such evidence, the first of which concerns sloppy preparation of cases for trial that relies on prejudice being enough to get the case through. The danger there is that if, for whatever reason, prejudice does not operate, a person is acquitted who should not have been because the case was not properly prepared. The fourth danger is that of the police rounding up the usual suspects—a lazy option that should not happen.
My amendments are an attempt to restore the Law Commission's draft Bill in the sense that, of the list of types of admissible evidence in clause 85(1)(a) to (h), two roughly equate to some of the Law Commission's recommendations on where leave should not be needed—(a) and (f)—and I would put those separately as being admissible evidence in every case. For all the others, I would say that for the evidence to be admissible, leave of the court is required and evidence must be relevant to the trial before the court.
The Minister and I have behaved in a gentlemanly way by exchanging correspondence about my amendments. Sadly, he could not bring himself to accept them. That is a shame, but it is his decision. His view, to summarise his letter, is that the Government want to send out a message that bad character evidence will be admitted in most cases, but there are safeguards in the Bill for those cases where it should not be admitted.
The safeguards are not very thorough, however. For example, only under paragraphs (d), (e) and (h) is there any protection at all. It is that the defendant is supposed to spot that the evidence is to be used against him or her in the trial and to object before it is revealed. The judge then has to consider whether the evidence would have
"such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
That is a narrow test and a high hurdle for the defendant to overcome. I do not want defendants to be acquitted when they are guilty, but such provisions tilt the balance a little too much in favour of the prosecution.
My proposals seem to have attracted quite a lot of support ahead of today. Perhaps the Minister does not receive all the briefings that are sent to the rest of us, but in several of them, including those from the Bar Council, the Law Society, the Legal Action Group, Liberty and the Justices' Clerks Society, there is either specific reference to my amendment and support for it, or the position taken seems to equate to my amendment in that those bodies want there to be leave of the court before such evidence is admitted.
The submission of the Justices' Clerks Society was prepared in February before I tabled my amendments, so the society was not saying that it agreed with me. However, I appreciate and agree with its summary, which states:
"It is a question of finding the right balance, and, on balance, the Society has profound reservations about routinely admitting evidence of bad character which, albeit that some relatively complex qualifications and criteria are contained within them, the provisions are designed to accommodate. If the law is to be amended, the Society would prefer any changes to be more closely aligned to the Law Commission's recommendations."
I take that as a strong endorsement of my position.
I pray in aid the Law Commission. In terms of independence and authority, there is no better body. It has considered the matter in great detail and appeared to have everybody's approval when it published its report and its draft Bill. It is a pity that we have moved away from that draft Bill and I should like it to be restored.
I rise to tell the House of my recent experience of defending a constituent who was prosecuted and, in the end, executed in the United States. During that experience, I saw the operation of a law that allows precisely what is currently being proposed. It is easier to accept such provisions when people cannot suffer such unacceptable punishment, but I still feel that it would be an extremely dangerous road down which to go.
The first reason for that is the question of bias. Sometimes, one feels that one does not need a great deal of evidence for something that is self-evident. It is extremely hard to believe that juries or magistrates should be put into a position in which, having heard evidence of previous bad character, or something that would currently not be admitted, they would have to put it entirely behind them and consider only the evidence before them. There is something fundamentally odd about that.
Of course, as others have said, evidence of previous convictions or of bad character is admitted in certain circumstances, but they are clearly circumstances that any rational person would see as reasonable: that is, where the specifics of the case so parallel the one before the court that it would be an amazing coincidence for someone different to have behaved in that series of ways on, for example, the fifth occasion. The circumstances must be such that most rational people would say that it was odd to keep the knowledge from the court as it would obviously be of value. The current proposals would go significantly beyond that, however, and with only extremely limited protection.
Let me draw the House's attention to an issue that arose when I was Secretary of State for the Environment and responsible for granting final planning permission for supermarkets at a time when we were seeking to restrain out-of-town development. I instructed my officials to remove from the documents the name of the supermarket involved in the application because I knew that there were some supermarkets that I thought did a good job and some with which I was less satisfied, and I knew instinctively that I would be more willing to grant planning permission in certain cases and less willing in respect of some other companies. I am being very delicate and not referring to Walmart. The fact remains that I knew that I had an instinctive concern. That caused me two difficulties: on the one hand, I might be biased in favour of someone, and on the other, I might make myself biased in favour of someone lest I admit of a bias. I sensed much greater difficulty in making an honourable and decent decision, so it was far better not to know certain things. The first problem facing us now is that we are making it difficult for decent jurors and magistrates to strike the balance that they want to strike.
Secondly, I am concerned about the police and the general forces of law and order. To return to the case of my constituent, he had been guilty when he was very young of being in some sense part of a group of young people in which a fatal shooting occurred. He was being prosecuted for an entirely different murder—one that, having read all the documents, I am entirely convinced he did not commit. However, when the police came to decide who among the group of young people they should prosecute, it was far easier to prosecute the man who had form, even though it was acquired through a wholly different and unconnected circumstance. It is arguable that that form proved that he was less likely to have done what he was now accused of having done, but it was easier for the police to say, "Well, this chap has form and we've got another chap who's prepared to bear witness against him, so we'll go for it." I am not suggesting that the British police in any circumstances would do anything of that sort, but I would prefer it to be beyond peradventure. It strikes me that the provision is too dangerous an element to have in the Bill. The problem was summed up for me by the senior law officer who said to me, "Well, you know, Mr. Gummer, he may not have done this thing, but he isn't a very nice man and we know that, and it would be better to have him off the streets." There is an element that takes that view.
Now I will say something unkind, albeit extremely carefully, about the Government. I think that the Government have taken this issue far too lightly. There is much in the Bill that is shameful and contrary to the best traditions of British justice. Again and again, the Bill lowers British justice compared with our neighbours'. There is much in it that makes unsafe prosecutions more likely than in countries in the rest of Europe about which we are doubtful when we compare their system with our rule of law. The Home Secretary should reconsider not only the current provision but several others that we have discussed.
The rule of law is more important than any other element of our constitution. After many years, I have concluded that democracy is less important to the poor and the vulnerable than the rule of law. The rule of law cannot be kept long without democracy, so the distinction is not entirely real. None the less, it is true that the rule of law is crucial if the vulnerable are to feel safe in society. The reason why I support the excision of the clause and the various ways suggested to make it less dangerous is that it undermines the safety of vulnerable people because it can be averred of them that, in the past, they have behaved badly.
That is why I want to talk about bad behaviour, about which I am particularly unhappy. I think that such language is so loose that it would never have been accepted in previous debates. I find it incredible that the Government have produced a Bill that is so loosely written in precisely that way. The idea that one might have a propensity to behave in a particular way is a very worrying aspect. First, as Simon Hughes said, other people might have a propensity as well, as propensities are very widespread. The fact that a person has a propensity to do something may not mean that they are the only person who has such a propensity; there may be many others.
Secondly, the phraseology that explains that issue is plain peculiar:
"he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person."
My mother disapproved of many things. She was a reasonable person and much of what she disapproved of was a matter of taste. I share many of her tastes in such matters, but the idea that somebody should start off their case in a certain way because my mother disapproved of something that he did seems very peculiar. However, that is exactly what the provision means. I have to tell the Minister that "disapproval" is a very pathetic word. It is the kind of narrow mindedness that one would not expect a Labour Minister to support and a kind of attitude that I think he should not be associated with.
I believe that "disapproval" is not only a pathetic word, but a misleading one. It can be used to cover a multitude not of crimes, but of sins. That important distinction is not made when we talk about disapproval. An atmosphere can be built up in a court around a particular person suggesting that he is the sort of person—I go back to my American example—whom we do not really like very much and not the class or type of person whom we really want to take too seriously, and that we should create circumstances in which it is hard for him to argue that he should be given the benefit of the doubt. Yet the English law is about the benefit of the doubt being given to the person who is charged.
That brings me back to the nature of what is being proposed. I find it very hard to accept that there are any circumstances beyond those that are already allowed in the court in which we should allow such evidence to be received. I see no example in which there is sufficient public interest to overcome the manifest public damage that will be done.
I shall end my speech by returning to the police. It would be wrong for the House to fail to understand that there is much more widespread unhappiness with the police than has hitherto existed. That is the case for a range of reasons, not least including difficulties with traffic offences and the like. Such an attitude exists in rural areas such as mine because the police are so thinly spread and people find it disconcerting that they cannot call upon the forces of law and order when they need them. I have a constituent who was hit over the head in his house by somebody from outside—the clause will not make him any happier about it—and waited for an hour and a half for somebody to come after making a 999 call. He rang again and they promised to come, but an hour and a half later, the police rang him and said that they did not have anybody to send. He did not find a policeman until 12 o'clock the next afternoon.
Such people are unhappy about the police for reasons that are not the fault of the police, but which certainly exist. We must therefore be very careful that we do not open up other areas in which the police can find themselves vulnerable. If such a possibility is damaging to the jury and defendant, it is also damaging to the police. It would be easy to say that the only reason I was picked on was that it was easier to pick on me than on someone else. At the moment, it is difficult to make that argument because we have very careful protections, but the moment it becomes easy to say that we can prejudice—that is what it is—the court against this person in a way that we could not against that person, the temptation to do so will be too great and, even if it were never succumbed to, it would be thought to be too great by those outside. That is why I believe that the proposal is terribly damaging to the police. Even if they behave with saint-like care, people will not believe them.
We spend a lot of time trying to ensure that people are not put into a position in which they might be misunderstood. Our own rules of conduct in the House are based on the principle that we should make public anything that, in the eyes of a reasonable person, might be thought to prejudice us. In the eyes of reasonable people, the proposal will be thought to prejudice the police about certain people in certain circumstances.
Very often, the sort of people with whom the police deal are not very nice. Very often, it would not do any harm to lock those people up because they have probably done a number of things that they should not have done, but the police have not caught them for doing it, so it is not a terribly far step to say, "Well, in this case, we may not be quite right, but we didn't get him for so and so, and we're pretty sure that he could've been involved in the other, so why don't we?" That becomes even more damaging in a police force consistently afflicted by the Government's addiction to targets. We are now a society in which what matters is not what is right, good or effective, but what fits the Government's targets, and I am worried that this is another mechanism by which those targets can be met far too easily and with great damage to juries, magistrates, defendants and the police.
Although I have tried to speak moderately, this is not a moderate issue. In this clause, as in so much of the Bill, the Government are behaving in a dishonourable way—they are undermining some of the very basic principles of English law. Enthusiastic European though I am, I must say that our system ought to be learned from by others, not undermined by ourselves.
I profoundly disagree with Mr. Gummer, who has just spoken in what I regard as highly immoderate terms about a Bill that, in fact, many of my constituents, to whom I have gone to a great deal of trouble to explain its provisions, regard as likely to give them a better shout in the courts, to restore their confidence in the way that the criminal justice system works and to redress an imbalance that, sadly, has been allowed to creep into the criminal justice system. In general, this is a good Bill.
I suspect that that the right hon. Gentleman is perhaps suffering from a combination of his desire to be amusing and the fact that he is still gripped by the emotional impact of having unsuccessfully advocated for a person on death row—an emotional impact that I well understand, having done exactly the same job. I fear that he has led himself astray. The attack on the Bill was far too wide, as was the attack on clause 85. In truth, there is a relatively narrow problem with that clause, not a very wide one at all.
I accept the analysis of the current state of the law, proposed by my hon. Friend Mr. Kidney. I agree with his analysis of the need for change, and I also accept the research evidence that he set out about the fact that juries are prejudiced by the admission of previous convictions.I shall not say any of that again.
In a sense, none of us has to persuade others that the introduction of previous convictions is capable of being prejudicial. The Government accept that it is. Paragraph 4. 55 of "Justice For All"—the paragraph before the one to which my hon. Friend the Member for Stafford referred—states:—
"Previous convictions, or some of them, may be irrelevant to issues in the case. Research undertaken for the Law Commission shows"—
I shall say this in capital letters, as it were—
"that knowledge of previous convictions may prejudice a jury or magistrates unfairly against the defendant."
The Government accept it. They put it in their White Paper, which sets out the basis upon which they intend to legislate. Have the Government gone back on that? I think not. They have carried the intention through, or 90 per cent. of it, but they do in the end slip up. I shall say in more detail what I mean.
Clause 85 allows in bad character of a defendant on eight bases. Subsection (1)(a) provides that it is admissible if all parties agree that it should go in—that cannot be a problem. Paragraph (b) refers to the evidence being brought in by the defendant—that cannot be a problem. Paragraph (h) refers to the evidence coming in because the defendant has made an attack on another person's character and it is just about equality of arms—again, that cannot reasonably be a problem.
Paragraph (f) provides that the evidence is admissible if
"it has substantial probative value" in an issue
"between the defendant and a co-defendant".
That is governed by another clause, which provides that the evidence goes in only if there is a fight between the defendant and another person, which is fair enough and should not be further governed. Of course, every defendant has to have the right to put in everything that helps his defence.
That leaves us with paragraphs (c), (d), (e) and (g). I hope that it is clear that I am speaking in favour of amendment No. 133, which stands in the names of myself, my hon. Friend Mr.Mullin and others, which is directed to expunging paragraph (d) from the clause.
I shall deal with the paragraphs that I do not seek to expunge, to ask in the end what paragraph (d) adds, except the real danger of the prejudice that the Government have envisaged in the White Paper. Paragraph (g) allows evidence of previous convictions to go in to "correct a false impression". It is entirely right that false impressions should not be allowed to prevail in a trial, the purpose of which is to search for justice. However, allowing in previous convictions so to correct has an extra condition upon it, and a very fair one. Clause 90 provides that if a false impression has somehow been conveyed and the defendant manages, however he chooses, to dissociate or distance himself from it, previous convictions will not be put in to correct the false impression. That is not problematic in any way.
Paragraph (c) provides that it is admissible to put in previous convictions if they are "important explanatory evidence". Again, that is governed by a further clause which sets out what that "important explanatory evidence" must additionally be. According to clause 86, it must be "important explanatory evidence" without which
"the court . . . would find it impossible or difficult properly to understand other evidence in the case".
If it is impossible for a jury to understand other evidence in the case unless previous convictions go in, they must go in. The entire point of the trial is to get the jury to understand all the evidence in the case. Equally, if it is difficult for the jury to understand other evidence in the case without previous convictions, there is an argument again for allowing them to go in. We are not in the business of putting difficulties in the way of jurors coming to a proper conclusion; we are there to help them.
Whether it is difficult without previous convictions going in properly to understand the evidence is a matter of opinion. It would be far better if the clause were governed by the general discretion in subsection (3) to allow the judge to decide whether it would be adverse to the fairness of the trial to allow previous convictions to go in, merely to solve a difficulty. Because of the perceived difficulties, previous convictions may have to go in automatically, whereas if the judge had discretion to look at the matter in the round, he might persuade the parties to consider another way of solving the difficulty. Consequently, subsection (3), which deals with the judge's discretion, ought to cover the issue of including previous convictions to solve a difficulty. There should be another hurdle to be crossed before those convictions go tumbling in, causing the prejudice that the Government accept they are capable of causing.
The hon. and learned Lady has prefaced each of her remarks with a qualification about previous convictions. Does she believe that all her arguments hold true for the so-called propensity to behave in a way that is disapproved of?
I am conscious that I am using the term "previous convictions"— that is the argot used in court. However, I accept the definition of bad character as set out in clause 82—my arguments apply to that concept just as well as they do to previous convictions, and I would not want to mislead anyone into thinking otherwise.
Clause 85(1)(e) states that previous convictions and bad character will be admissible if they are
"relevant to an important matter in issue between the defendant and the prosecution".
That is a question of judgment, and the judge will have the ability to exercise judgment under subsection (3). As fairness and balance will characterise that judgment, and if the previous convictions are relevant to an important matter in issue between the prosecution and the defence, it is hard to see what mischief can follow. Clause 88 defines what is meant by the
"matter in issue between the defendant and the prosecution" which, it says, may include
"the question whether the defendant has a propensity to commit offences" of a certain kind. It therefore countenances the inclusion of previous convictions to show propensity, but then makes a reservation, stating that the exception is
"where his having such a propensity makes it no more likely that he is guilty of the offence."
The provision certainly countenances the possibility that propensity is sometimes relevant but, at other times, the existence of a propensity, provable by previous convictions, is not relevant to whether the defendant committed the offence or not.
That is relevant to the question of what on earth clause 85(1)(d) is about. I have gone through all the other circumstances in which previous convictions and bad character can generally be admitted, but paragraph (d) states that bad character can be admitted if
"it is 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".
That appears to be about propensity, but paragraph (e) deals specifically with the showing of propensity, with the caveat that that can be done only where relevant. Evidence of bad character will not just tumble in if it is not relevant.
What is paragraph (d) for? In Committee, the Minister gave an example of his own experience of jury service. He had sat on the jury in a trial for burglary and handling the proceeds of the burglary. The issue was whether the defendant had come honestly into the possession of the proceeds of the burglary or not. At the end of the trial, the jury found out that that man had previous convictions for three burglaries, and the Minister said that all the members of the jury would have liked to know that in their deliberations during the trial.
In other words, the defendant had a propensity to be dishonest, and the Minister would regard that as important evidence that would help him to be persuaded one way or another. He said that that is why we need paragraph (d). But we do not need (d) for that, because (e) states that an important matter in issue between the defendant and the prosecution can be the issue of propensity, but only where propensity shows that it is more likely that the defendant has committed the offence.
That may be a tortuous argument, but I hope it is now clear that in so far as propensity is relied on as a justification for paragraph (d), it is totally and utterly unnecessary. What it allows, frighteningly, is for previous convictions to be admissible which will show propensity when they do not make it more likely that the defendant has committed the offence with which he is currently charged. If they did that, they would go in under paragraph (e). Consequently, paragraph (d) has no justification whatever, and it would prejudice the jury. That is where the matter starts and finishes, once one analyses with some care and in some detail the basis on which in other paragraphs previous convictions are admissible.
I have followed the hon. and learned Lady's argument, and she knows that I am with her on the problems of paragraph (d). Can she explain how she can justify the argument that if there is a propensity to carry out a certain offence, that makes it more likely that the individual has committed the offence with which he is charged on the present occasion? That was the question put by Mr. Gummer. Propensity does not lead one to that conclusion. Why does the hon. and learned Lady believe that it does?
I did not say that. On the contrary, that is the issue, under paragraph (e), for the judge to decide. He has to say that previous convictions can be mentioned to show propensity if that propensity makes it more likely that the defendant has committed the offence in question. There is clearly a grey area. Occasionally, if a series of similar offences has occurred recently, propensity might be probative. The judge must decide under paragraph (e) whether the evidence of propensity—about which, as a general proposition, I confess I am a little unhappy—makes it more likely that the defendant has committed the current offence.
That question can fairly be asked, but under paragraph (d) no such question is asked. Previous convictions tumble in simply because they exist, although they do not make it more likely that the defendant has committed the offence with which he is charged. If they did, they would go in under paragraph (e). Reference to previous convictions will prejudice juries to no effect, and that is a prejudice that the Government accepted in the section of the White Paper from which I quoted. It is a prejudice against which they set their face in that same White Paper.
What will the consequences be? They have been mentioned by others. Our stated policies are to catch more criminals, to convict more criminals, to punish more criminals and to rehabilitate more criminals. How will people be rehabilitated when they know that if any offence is committed in their locality that resembles the one of which they were convicted in the past, they will be picked up. They are bound to be picked up for it by a police service that knows that that will help it to get a conviction. They are bound also, more frequently than prior to the Bill, to be prosecuted by a Crown Prosecution Service that knows that in deciding whether a prosecution is likely to succeed, it can weigh in the balance the fact that previous convictions will be put before the jury.
The criminal, who was intended to be rehabilitated, will also know that he is far more likely to be convicted because of his previous conviction. The Government say that they want to rehabilitate such people. The Government say they want them to go straight, to turn over a new leaf. But those people will be trapped in their past. They will be unable to get away from their past. For what? For no reason at all. Every conceivable justification for admitting bad character into a trial has been set out in all the other paragraphs of clause 85(1). Paragraph (d) is extremely dangerous, and I urge all hon. Members to vote it out of the clause.
The Bill is part of a panoply of measures meant to address the perception that the legal process is skewed in favour of defendants and therefore against the prosecution. This measure is part of what I believe to be a series of measures to redress the balance in favour of the victim, but I regret that the likely upshot of this part of the Bill will be to create victims, who may well be queueing up in the criminal Court of Appeal in due course. I listened carefully to the speeches by Mr. Gummer and Vera Baird, and I fully agree with what they said. I will confine my remarks to certain points that they did not cover.
If the current proposals pass through the House unamended, allowing evidence of previous bad character and/or convictions will be hugely detrimental to the trial process in our criminal courts. Let us remember that there are circumstances—albeit limited ones—in which we already have the right to introduce evidence of bad character and previous convictions, and that is absolutely right. Any practitioner will agree, however, that those circumstances are usually exceptional because, by definition, they are relevant only in exceptional cases. But the Bill proposes a wholesale, blanket introduction of previous bad character. Would that not mean that every defendant, once convicted, was beyond redemption?
I refer to what the hon. and learned Member for Redcar said about rehabilitation. This measure would effectively mean a life sentence for some people. Perhaps that is dramatic language, but it would not be pleasant for a person to be picked up just because someone in the locality had offended in a way similar to that in which he had. For years to come, such people might await the knock on the door. That would be hugely damaging to the whole image of the judicial process, from the police investigation upwards.
Worse still, the proposals pander to the "round up the usual suspects" culture that is, I am afraid, prevalent in some parts of the justice system. Some of us feel that this one measure will throw the criminal justice system into disrepute. The next stage will be to dismantle the system of trial by jury. The job will then be complete. If these provisions are enacted unamended, I believe that it would be simpler to dismantle the jury system in due course, and that such a move might meet with less opposition then.
Let us remind ourselves briefly of the circumstances in which character can be admissible. First, if a defendant asserts that he or she is of good character when he or she is not, it is perfectly right to introduce that evidence in a criminal trial. Secondly, if a defendant attacks the character of a witness, it would be perfectly right for that to be admitted. Mr. Kidney—echoed by the right hon. Member for Suffolk, Coastal—mentioned evidence involving striking similarities that would make it almost unbelievable that another person had committed an offence in exactly the same way as the person before the court. Introducing such evidence in those circumstances is perfectly acceptable. I have been involved in trials in which such evidence has been presented, and, of course, the judge will decide in those circumstances whether it is right or proper to do so, and whether to do so would create any prejudice to the trial or to the defendant.
Clause 85 should be removed altogether. The law already provides for the rare circumstances in which character and/or previous convictions need be introduced, and, like the hon. and learned Member for Redcar, I see no reason to include the clause other than to introduce prejudice.
"In one recent case, a jury trying a doctor accused of raping a patient was not allowed to know that he had previously been convicted of indecently assaulting six patients and acquitted of raping another. The defendant was addressed as 'doctor' even though he had been struck off, and the jurors were unaware that he was being brought to court each day from prison. That typifies the sort of case, argues Falconer, where juries should not be kept in the dark."
Lord Falconer was quoted as saying:
"I'd have thought the classic case is an apparently respectable professional man, say a doctor, who assaults patients in the course of his work."
He said that if that behaviour had led to convictions, they should be admissible.
It seems to me that precisely such cases are already covered by similar fact evidence. If such a person repeatedly assaults or rapes his victims in his surgery, it is only right and proper for any half-decent, half-sensible prosecutor to apply to the judge, and I am almost sure that few judges would see any reason to dispute such an application. The best case presented by Lord Falconer in defence of these draconian provisions is the one example covered by current law and practice.
I agree with much of what the hon. Gentleman has said, and I agree, in general terms, that in the example given by Lord Falconer the evidence would have been admitted. However, I take issue with the hon. Gentleman on the use of the term "similar fact evidence"; indeed, I have objections to its use in a general context.
As the hon. Gentleman will know, the terms "similar fact evidence" and "striking similarity" have recently been disapproved of by the courts. The test now applied is that of relevance to an issue of propensity. In the example given, the evidence would plainly be relevant to an issue of propensity and would therefore be admitted. The issue that I have with the hon. Gentleman—and, I am sorry to say, with Mr. Gummer—is this: the test proposed in the Bill is identical to the one currently applied.
Far be it from me to argue with the hon. and learned Gentleman, who is far more experienced in criminal trials than I am. I understand what he says, but that was not apparent to Lord Falconer when he defended the Bill.
I am obliged to the hon. and learned Gentleman.
My main problem with the Bill is the routine introduction of evidence of bad character. That is a defect. It will, unfortunately, instil prejudice in the minds of jury and/or magistrates. That has been referred to in what I erroneously described as the Birmingham study, which I think is in fact the Oxford study, and was also referred to at length by the hon. Member for Stafford and the hon. and learned Member for Redcar. We are discussing a change in the law that will enshrine a right to introduce prejudice to a fair trial, which is asking for trouble. We are treading a dangerous path.
Yesterday, when we considered the Crime (International Co-operation) Bill, there was disparaging talk about the standard of justice meted out in other European jurisdictions. If we do not accept the amendment, we will find ourselves at the bottom of the league, and people on mainland Europe will ask when we will start to act toward accused people in a fair and reasonable manner. I honestly and sincerely believe that the provisions are highly objectionable.
Clause 88 includes a measure on propensity, but the Law Commission made no such recommendation on that score. I know that some of its recommendations have been used and some have been declined. The upshot of passing clause 86 and the other provisions without amendment will be to bring the criminal courts into disrepute. The provisions will make thoroughly bad law and I urge hon. Members to support the amendments.
It is a pleasure to follow Mr. Llwyd. I agree with my hon. and learned Friend Vera Baird that the Bill is better than Mr. Gummer acknowledged during his otherwise compelling speech. I agree that the problem is fairly narrow but it gives a damaging impression and stains the whole Bill, so I hope that the Government will do something about it. I shall speak to amendments Nos. 125 and 126, which I tabled. I support amendment No. 133, which was tabled by my hon. and learned Friend the Member for Redcar.
Amendment No. 125 would provide that a person could not be convicted solely on the basis of bad character. It is an attempt to ensure that other evidence, such as an eye-witness account or fingerprints, links the defendant to the offence with which he was charged. That is not too much to ask in this day and age. When Lord Falconer attended a sitting of the Home Affairs Committee to discuss the Bill, he was at pains to assure us that the judicial discretion provided by clause 85(3) would be sufficient to prevent the use of bad character evidence to prop up a weak case. No doubt that will usually be true, but not necessarily always. I can foresee what might happen in a high-profile case because that would give rise to the greatest temptation. A judge might feel obliged to allow bad character evidence to go to the jury for fear of otherwise allowing the case to collapse. That is because the police would be under the greatest pressure to get results and the Crown Prosecution Service might be willing to throw such evidence to the jury, although it was a bit iffy, to find out what would happen. The amendment would prevent that from happening.
I am grateful to Lord Falconer and my hon. Friend the Under-Secretary for their courtesy and the trouble that they have taken to explain the Government's position. However, I cannot say that I am happy with the outcome. I have tried to be constructive and I provided Ministers with half a dozen proposals for modifying the provisions in addition to those in the Select Committee report. I regret that they have rejected every proposal.
I received a letter yesterday on amendment No. 125 that suggested that the Government envisage circumstances—albeit very limited ones—in which a conviction could be obtained on the sole basis of previous convictions. That is a recipe for mistakes and it is easy to imagine how they might happen. Whenever a serious offence such as a child murder is committed, the police reasonably search out people with previous convictions that make them potential suspects. People with alibis would be quickly eliminated but those without them would have a problem, especially if little or no other evidence were required. Experience implies that juries are especially suggestible in cases that involve sex offenders and that admission of previous sex offences against children would be fatal, whether the defendant was guilty or not.
"Detectives are also scrutinising 60 people whom they regard as being 'of interest', and a dozen whose backgrounds make them credible suspects."
If we subtract those who have alibis, we might be left with half a dozen credible suspects. There would be evidence of bad character for them all, and if that is all there is to go on, a result could be obtained on any of them. That happens from time to time.
The implication of the hon. Gentleman's comments of a moment ago is coming over me in waves. Did he receive a letter from the Government that stated that they expected that there would be cases in which a person was convicted solely on the basis of previous bad character?
I must be careful not to misrepresent the Government. The case that they cited was Straffen in 1952. I cannot find the letter at the moment, but it seemed to me that the evidence in that case bore a signature and that the Government had not given an example that was relevant to my point. Perhaps I have misunderstood and the Under-Secretary can clarify the matter, but it appeared to me that they wanted to leave open the possibility, albeit remote, of convicting someone on the basis of bad character.
Perhaps I may assist. When evidence of bad character is adduced in criminal cases, it is clearly good law that the judge tells the jury that it must not convict on the evidence of bad character alone. That is currently the law. Although the Bill is flawed, I do not believe that it will have any effect on that part of the common law.
I have now found the letter. The Government say that we should leave matters to the judge, who does not want to be hamstrung by the sort of amendment that I tabled. However, the track record of judges is variable—I put that as generously as I can. Most, but not all, can be relied upon. I remember the words of Lord Justice Bridge at the beginning of the summing up in the Birmingham pub bombings case. He said that some of his colleagues took the view that a judge should be an Olympian detached observer and impartially set out the case without revealing a view. He said that he was not one of those and went on to spell out his view of the case for 189 pages, destroying defence witnesses at random, with results that we all know. There are good and bad judges, and I am sure that most are good.
I do not want bad character evidence to be used to prop up a weak case. We can all think of examples: dodgy identification evidence or a cell confession. There are cases in which someone who has been interrogated for several days in custody and has not coughed is put in a cell with a known villain and, blow me down, is pouring out his heart in a few hours to a person who suddenly agrees to give evidence, in return for early parole or other offences being overlooked. My ears always prick up when I hear about a cell confession. I am sorry that they happen more often than they should. Add a bit of bad character evidence to dodgy ID evidence and a cell confession and, Bob's your uncle, there is a conviction. That worries me.
Amendment No. 126 is designed to extend the judicial discretion in clause 85(3). As drafted, the clause provides eight grounds for the admission of bad character evidence, and a defendant can challenge them in only three circumstances, which the amendment would extend. The Government's proposals are a bridge too far and I hope that, even at this late hour, they will think again.
The Liberal Democrat amendment No. 29 goes further than I would like, but I shall support it to send the Government a message that they need to examine their proposals again. If my hon. and learned Friend the Member for Redcar decides to press her amendment, which also bears my name, I shall support that, too.
The debate has had the unusual characteristic of changing my mind in an important respect. I had not previously accepted the force of the argument advanced by Vera Baird about clause 85(1)(d). She made a compelling argument and I shall invite my hon. Friends to join her in the Lobby if she presses her amendment. Our amendments Nos. 23 and 24 do not deal with the serious problem of paragraph (d) and I profoundly hope that when the Bill reaches the other place, the hon. and learned Lady's arguments will be read by and resonate with the noble Lords. I certainly hope to see paragraph (d) expunged from the Bill.
I do not agree with the hon. and learned Lady's observations about the general tenor of the remarks made by my right hon. Friend Mr. Gummer, because I thought he was on to something. I disagree with the hon. and learned Lady partly because she has not taken into account the full force of the effect of the Government's other proposals. I shall explain why in more detail: to some degree, it has emerged from previous discussions.
In all these matters, the key issue is not the words on the page, but their effects in court. It is arguable—hon. Members have argued—that, broadly speaking, the law already achieves what the Government seek to achieve. If that were utterly the case, the proper step would be for us to accept and support the Liberal Democrat amendment. If the law already admits propensity, already restricts it appropriately and already admits appropriate factors—similar fact and so forth—there would no point in introducing the clause in the first place.
The current Home Secretary is the most legislative Home Secretary in British political history. He would take great pride in that; I am not accusing him of anything that he would be cross about. It is not a track record that I would seek to emulate if I ever succeeded to his post. However, even this Home Secretary with his great legislative propensity has no previous convictions for producing legislation that will have no effect. I doubt that he has marshalled the awesome resources of the Home Office to establish a set of intricately interlinked clauses—clauses 82, 85 and 88—with the sole purpose of having no effect whatever on British legal practice. He surely intends the provisions to have an effect. Presumably, the many highly paid and highly expert lawyers at his disposal will have advised him that the clauses will have an effect. It is unlikely that the only effect that he intends or expects will come about through paragraph (d)—though, as I say, I am persuaded that that provision will have an untoward effect. The Home Secretary intends a wider effect, so it is important to recognise that and wrestle with its implications. That is precisely what our amendments are designed to achieve.
I know that the right hon. Gentleman considers, as I do, that this Government have a bad character when it comes to introducing legislation that assaults civil liberties. That happened twice in the previous Parliament, and corrections had to be made in the House of Lords. The previous Conservative Administration had a similarly bad character, for the same reasons. One way that that bad character is acquired is through the thoroughly meretricious practice of rephrasing existing law in ways that attempt to make it appear that it is being strengthened against criminals, when no such thing is happening in fact. I should be very interested to hear how the right hon. Gentleman considers that the present law differs from the proposals in clause 85. The earlier clauses, as described by Mr. Gummer, are different.
I shall answer that request, but first I should admit that there are instances—the Anti-social Behaviour Bill that will come to the House in the near future may be one such—where legislation is a form of public relations. That is regrettable, but it has occurred. However, I do not think that this Criminal Justice Bill is in that category. It is the centrepiece of the Home Office's suite of legislation in this Parliament, and I doubt that the Government want to achieve a purely public-relations effect with it.
I think that the Government are trying to do something with this Bill, and roughly what that is has become clear in this debate: they are trying to send to the judiciary a signal that its members should somewhat alter their presumption. No more, just that—but it is an enormously important action. None of us in this House can guess or know how far the judiciary will pay attention to that signal. Judges have proved splendidly able to disregard such signals from time to time, but they may pay attention to this one, and that is what concerns us. I do not want to dwell on the problem, which has been eloquently described by others. The Opposition's concern is exactly as has been described—that, if rounding up usual suspects were to become a regular phenomenon, it would alter the character and reputation of British justice as very little else could.
The most important feature of our constitutional arrangements, and of people's sense of justice in this country, is that we operate from the presumption of innocence. I do not think that there is a more important principle in Britain. If, over a period of 10 or 20 years, the British public come to believe that being a usual suspect will often lead to being convicted, and that it is not as important to the courts as it used to be that there must be proof beyond reasonable doubt, that will undermine our system of justice in a way that nothing else could.
We have a very precious inheritance, and we must go the last mile to protect against the effect that I have set out. That is why it is important that we redress the balance by introducing into the clause a provision that will prevent the signal that I have described from being conveyed to the judiciary. That is precisely the intent of our amendments Nos. 23 and 24. Their effect would be clear and simple: they would require the judge to look at the potential probative value of the evidence, and minutely to consider whether that is outweighed by the prejudicial effect of the bad character evidence.
In amendment No. 24, we go in some detail into the steps that the judge needs to take to make that determination. We do so to ensure that no judge could possibly be tempted, after reading this legislation—we hope that it will become an Act—to conclude that he was being asked to take the risk of allowing evidence whose probative value was outweighed by its prejudicial effect.
The most important part of amendment No. 24 is contained in proposed new subsection (4A)(b). We ask judges to consider whether the risk of
"convicting the defendant on the basis of his previous conduct rather than because they are satisfied of his guilt in relation to the matters now alleged" outweighs the probative value. That theme has run through all the speeches in this debate so far, and it unifies Members on both sides of the House. I think that those in the other place will regard it as critical. If judges were asked to do that, they would know how to do it, and it would turn the clause into one that would have no effect, which is exactly what we want it to do. We want to be sure that the clause would only codify a position that is already sensible and to avoid prejudicing trials by giving judges a signal that they can admit evidence even when they are somewhat unhappy about it.
Vera Baird used the phrase "somewhat unhappy about it" towards the end of her remarks. It emphasised the force of my argument with her about the parts of the clause outside paragraph (d). Everyone who has spoken in the debate has been somewhat unhappy about the prospect of previous character evidence being given too great a weight. That is an instinct and a feeling to which we ought to attend, as it springs from the deepest understandings of the nature of our system of justice. Parliament ought not to be allowing legislation to be enacted in a form that leaves people who want to convict the guilty but want to preserve the ability of the innocent to go free feeling somewhat unhappy.
It is unclear from the amendments whether the right hon. Gentleman and his colleagues agree with the definition of bad character evidence in clause 82, which concerns me greatly. The clause states:
"Evidence of a person's bad character is . . . he has committed an offence, or . . . he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person."
The right hon. Gentleman will know that there are reasonable Ministers in the Government who believe that rap music is associated with a serious and worrying form of conduct. Will the hon. Gentleman comment on that definition? Does he think that it goes too far? In my view, it certainly does. Before I vote for his amendments, he must clarify what he understands by bad character.
The hon. Lady makes a serious and salient point, but it should be tackled in the light of the free advice given to us by Mr. Marshall-Andrews, acting in his capacity as the local lawyer. He told us, rightly from what I have been able to understand, that the statement in clause 82(1)(b)—I agree with my right hon. Friend Mr. Gummer that it is bizarre—is not a bad codification of the way courts understand bad character at present. They allow propensity, as the hon. and learned Member for Redcar made clear and, amazingly—I had not understood this fact before dealing with the Bill—they admit, or have shown some inclination or propensity to admit, character evidence that is not evidence of a previous conviction but goes beyond that. It might even include an acquittal. I agree with the hon. Lady that, taken at face value, clause 82(1)(b) is jolly worrying. As the hon. and learned Member for Medway informed us, the present state of the law is somewhat worrying. However, to return to the point that I am trying to make about our amendments, as I understand it—I hope that I am right—the courts have an extraordinary inclination to look very closely at any such evidence before they allow it to be brought forward. They worry a lot about whether any such evidence should be brought forward. In particular, they worry about evidence that is not a previous conviction. The general attitude of the courts is therefore not to allow such evidence unless there are extremely strong arguments for doing so in the interests of justice.
The problem with the signal that is sent by the clause as it stands—the signal that I believe the Government intend to send to the courts—is that it is intended to diminish the degree of angst that the courts rightly exhibit. If clause 82(1)(b) is a reasonable synopsis of the current definitions on which the courts operate in practice, what we have set out in amendments Nos. 23 and 24 becomes all the more important. If there has been a previous acquittal, and if the prosecution argues that it should be admitted in evidence, the judge should be able to ask whether there is a risk that, if such an acquittal is brought before the jury, the defendant will be convicted on the basis of previous or alleged conduct instead of on the facts of the case. If, through amendment No. 24, we could restore the position so that the courts do worry about such questions, we could reasonably leave it to judges to protect the presumption of innocence. My impression is that the English judiciary still has a strong attachment to the presumption of innocence.
I would like to correct one misapprehension. I do not say that clause 82(1)(b) represents succinctly the law as it stands. Indeed, I cannot think of a court of appeal that would have expressed itself in terms, or in prose, as awful as the wording of clause 82(1)(b). However, perversely, therein lies the safeguard. This clause will undoubtedly be interpreted and construed by the Court of Appeal, and it will be interpreted and construed in precisely the same terms as the present law. That is not satisfactory, but it is not a burning-at-the-stake issue.
Like my right hon. Friend, I am not a lawyer. One of my big problems with this issue is that, although Mr. Marshall-Andrews is always extremely seductive in presenting his views, I am not at all sure that hon. Members should agree to phrases that, simply because they are manifestly barmy and inadmissible, judges will interpret in a wholly satisfactory way. Does my right hon. Friend agree that it would be much better to get rid of clause 82(1)(b), so that those words do not deface what may otherwise be considered a reasonable part of the Bill?
I am in danger of being persuaded twice in one afternoon. I agree with my right hon. Friend that, on the face of it, clause 82(1)(b) is jolly odd—that is my translation of his "manifestly barmy". If clause 82(1)(b) does not properly provide a synopsis of the way in which the courts currently deal with these matters, it will be necessary to change it—in the other place, because it is too late here and now—so that it does. It is clear to me from the remarks of the hon. and learned Member for Medway and others that the courts have a conception of something that goes beyond mere conviction, and that needs to be captured in clause 82(1)(b) if we are to have a decent piece of law. I take it that that is what the Government tried to achieve in the clause, but I am persuaded by my right hon. Friend that, if it does not do so, it must be amended so that it does and so that it makes sense.
I want to say one last thing in this connection. To respond to Lady Hermon, even if we reach the point where clause 82(1)(b) is a reasonable synopsis, it will operate properly, in the spirit of the kind of justice that we want, only if it is allied to a set of provisions that ensure that before the court admits such evidence it will look extraordinarily closely at the matter and ask itself very carefully whether there is a prejudicial effect. That would require amendments Nos. 23 and 24, or similar amendments.
Notwithstanding clause 85(1)(e) and (f), which cover relevance to an important matter and substantive probative value, the House should be worried about clause 82(1)(b) because it relates to matters that may have nothing whatever to do with a criminal act. Although it is bad enough in many circumstances to admit previous convictions, to admit evidence in relation to behaviour that is not criminal, but may be immoral or disapproved of by reasonable people, is something that I invite my right hon. Friend to resist strongly. Whether he resists it through his amendment or through amendments tabled by other hon. Members, I urge him not to allow himself to be seduced by any arguments that the Government advance, no matter how reasonably they are put.
Order. Before the right hon. Gentleman answers, I must say to the House that I am even less of a lawyer than any other right hon. or hon. Member who has participated, but I am bound to observe that we are dealing with clause 85 and must not spend too much time on clause 82.
I hope that the House will send to the other place—because that is where the argument will be carried on and where the votes will be won or lost in a meaningful fashion—a clear signal that is very different from that which the Government wish to send to the judiciary: namely, that one way or another we have to arrive back at a position in which the courts are very reluctant to admit evidence of this kind and do so only in circumstances where they are absolutely convinced, upon prolonged consideration, that the presumption of innocence will not be so prejudiced as to change the character of British justice. If we can arrive at such a position, the means by which we do it are far less important than the effect that we will have.
This has been an extraordinarily interesting debate in which we have heard valuable contributions from lawyers and non-lawyers.
There is a cliché in the film and television worlds of the police movie or the police serial in which one policeman is stolid in appearance, has a stolid car and a stolid house, and takes a stolid approach to policing matters that goes by the book. That person is not the hero. The hero is the rebel who refuses to wear the correct uniform, insists on living in completely inappropriate accommodation and continually bends the rules to breaking point and beyond in order to secure the conviction. We are supposed to assume that that policeman is the one who is doing his job in a better and more admirable way. That is not the case, however. That police officer is a danger both to himself and those around him and to the course of justice. Sometimes, when the Government address matters of crime, policing and justice, they take that somewhat reckless attitude. They take the view that the end of securing more convictions of guilty parties—an aim that we all share—allows them to take reckless risks with the means of arriving at that point, which are the judicial and, especially, the court processes. That is what we are debating.
In some ways, the proposals are a codification of current practice. Members on both sides of the House have been at pains to say that we accept such codification as right, proper and a sensible way forward. However, is the use of that vehicle to extend the introduction and admissibility of bad character evidence, as the Government propose, a sensible reaction to rebalance the scales of justice; or will it take things to the point at which it is likely that manifest injustice will be done? The latter is more likely.
I entirely accept your strictures about clause 82, Mr. Deputy Speaker, but we must be aware of what it says, because it provides for the bad character evidence that would be used under clause 85. I am wholly unpersuaded that subsection (1)(b) of clause 82 represents an acceptable definition of what might be admissible evidence of bad character. As that provision is unacceptable, it is even more difficult to accept clause 85 because it would provide for such bad character evidence to be admissible in a wide range of circumstances.
Earlier in the debate, Mr. Cameron asked why we wanted to delete the whole of clause 85 even though we accepted codification. The answer is that the clause would be extremely poor codification. Indeed, professionals in the field have said that it is more likely to result in more lawyers making more arguments about admissibility than in fewer lawyers making fewer such arguments. Although we believe that it is possible to reach consensus on appropriate codification, this clause is not it. We can pray in aid the comments not only of Labour Members but of Plaid Cymru and Conservative Members. They share our view that the provision is unacceptable.
There are several layers of unacceptability. First, we must start with the presumption of innocence and proceed on the basis that, in British law, the case before the court is the one that is being tried—not previous circumstances that may not be relevant to that case.
Secondly, it is wholly unacceptable to define a criminal class, whereby people who are identified as likely to have committed a crime, in the eyes not of the police but of the court, are more likely to be convicted of that crime irrespective of any other evidence that is submitted. I am reminded of the unlamented Lord Chief Justice Jeffreys and his infamous, and probably apocryphal, dictum during the bloody assizes in Taunton, when he tried some of my ancestors and others after the Monmouth rebellion: "Do not waste the time of the court by pleading your innocence." We say much about British justice, but at one time it was not quite as finely balanced as it is at present. When a person is before the court, we want no presumption or prejudice that merely their past record or character, rather than the other evidence adduced, suggests that they are more likely to have committed the crime.
Separate from the provision's effect on the defendant and the conduct of cases is its effect on the conduct of investigations—a point made by Mr. Kidney. Several hon. Members have alluded to the practice seen in "Casablanca" when the policeman René, whose rank escapes me, gives the order to round up the usual suspects. That process is not acceptable in British policing, but clearly the temptation to use it will be greater if the usual suspects are more likely to be convicted in a British court. The provision encourages sloppy policing and sloppy case preparation, as the hon. Gentleman said, and it makes it more likely that investigators will concentrate more on investigating previous convictions and history than the circumstances of the current case, which is bad practice in itself. All those problems combined make the provision corrosive of investigative and judicial procedure in a way that we in Parliament should not accept.
I believe that the Government could propose a formulation to which all of us agree. The lead amendment would delete clause 85 in its entirety simply because the Liberal Democrats think that the Government should go back to the drawing board and start again. Vera Baird takes a narrower view: she has no problems with much of the clause but wants to get rid of subsection (1)(d), which she finds especially offensive. We agree that that is the most offensive part of the clause, so we can support her amendment. Mr. Letwin has been persuaded by some of the arguments about subsection (1)(d) but not of the desirability of deleting the whole clause; he would introduce a new test—a balance between the probative value of the evidence and the prejudicial effect. We agree with that as well: although it is perhaps the least satisfactory way to redress the imbalance in the clause as it stands, it is a move in the right direction and we are grateful to the right hon. Gentleman for suggesting it.
I think that that proposal comes close, and it should certainly be the starting point because it is founded on research done, advice taken and the application of judicial minds to the problem and it builds on current practice. I am told that similar fact is now called propensity—I am not a lawyer, so I did not know that—but it appears to cover broadly the same area. I share the view expressed by Mr. Gummer that if we rely on the Court of Appeal to interpret what we in Parliament draft sloppily, we are not doing our job properly. I hope that we can get the provision right in the other place; it clearly is not right now.
Whatever the solution, let us all accept that there is a problem with the Government's drafting. They have attempted to be popular in some ways and to send out signals. I deeply mistrust the concept of sending out signals; that is not what legislation is about. Legislation is about making law that is unambiguous and will work, not about sending out signals that might be misinterpreted at the point of receipt. If a measure so crucial to the judicial process and the reputation of our courts is wrong now, let us go back to the drawing board and reach a consensus on an alternative proposal. I agree with Mr. Llwyd, who said that those who yesterday, debating the Crime (International Co-operation) Bill, decried other countries' judicial systems will have to look again at ours if we accept into our law the Bill in its present form, complete with the demerits, deficiencies and imbalances that it will introduce into our system.
This has been a fantastic debate to listen to, perhaps especially for the non-lawyers among us. I wanted to add my voice in opposition to what the Government are trying to do in clause 85 in terms of previous convictions.
As Mr. Heath said, we have been offered a menu of ways of changing what the Government are suggesting. The Liberals propose that we leave out clause 85 all together; my right hon. Friend Mr. Letwin suggests that we consider prejudicial and probative value in each case and try to codify the law; and Vera Baird proposes what is possibly the neatest solution—taking out clause 85(1)(d), as paragraph (d) is the biggest problem.
After all the arguments that the Government have heard, I am sure that they are aware that they must go away and rethink the provisions. They have a range of options, including those proposed by Mr. Kidney and by the Law Society. I think that anything would be better than clause 85(1)(d), which is the real problem.
There is a charitable view of what the Government are trying to do and an uncharitable view. When I served in Committee, I felt that the charitable view was that they are trying to find a balance between two principles: first, the jury should be able to see the facts—
Just for the record, will my hon. Friend confirm that he cannot have heard the Committee discuss the provision in question, as opposed to the many others, because the proceedings were so organised that it never reached clause 85?
My right hon. Friend is absolutely right. There are many things that we did not reach. Indeed, we did not reach some things in Committee that we have not reached today and will not reach.
The charitable view of the Government is that they are often wrestling in the Bill with two principles. The first principle is to let the jury see the facts, let the dog see the rabbit and let all the facts be laid out in front of the jury and trust it. The second principle is that we must do what we can to keep a fair trial. The uncharitable view of what the Government are doing is that they wanted to have a public relations exercise—this is the point made by my right hon. Friend the Member for West Dorset—and a tough Bill. They wanted the police to say "Yes, this is a great, tough Bill" and the Prime Minister to be able to speak at the Dispatch Box about a tough law-and-order Bill. There were moments in Committee when one felt that the police had given the Government a list of things that they would like to be written into law, and I suspect that they were pretty amazed that the Government said yes to all of them. The provision that we are talking about in relation to previous convictions probably falls into the second category, or the rather uncharitable interpretation of the Bill.
The hon. Member for Stafford and the hon. and learned Member for Redcar made powerful speeches in which they tried to give a charitable interpretation of what the Government are doing. However, I say to them that they have to ask why the Government are going ahead with clause 85(1)(d) if its purpose is to prejudice a trial and poison the well. I say to the hon. Member for Stafford that he needs to ask the Government why they are going ahead with a provision that goes beyond what the Law Society recommended if not to send some sort of message about toughness that I think is inappropriate and will not be right.
On the whole, I am in favour of giving the jury more information. I want instinctively to trust the jury. I am not a barrister, but I have served on a jury in a trial and I had great faith in the common sense of the jury system in getting it right. I have some form on the issue, having worked in the Home Office when my right hon. and learned Friend Mr. Howard, who is not a known liberal, was Home Secretary and reformed the right to silence. To me, that was a wholly appropriate and welcome change. It gave juries the chance to consider more information and find out whether someone had said something when they were first arrested and then decided to stay silent afterwards. Information that juries could not previously consider could be brought out in court and commented on as a result of the changes that we made as a Government.
I think that the provision before us is entirely different. As several hon. Members have mentioned—I shall not repeat their remarks—much of what is contained in paragraphs (a) to (h) of clause 85(1) tries to codify current practice and what currently happens in the law. The real problem is paragraph (d), which is the big kahuna, as it were. Let me repeat it:
"it is 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".
A point needs to be made—I do not think that it has been made so far—about the fact that, in asking what counts as the same category, one has to look at clause 87, which states:
"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."
So the Home Secretary's fingerprints are clearly on what would be considered as the same category. As the hon. and learned Member for Redcar said, that is the biggest change.
When we vote tonight, we must ask ourselves whether we want juries to think, "He did it before, so he has done it again." That is what clause 85(1)(d) tries to do. I have consulted lawyers about clause 85, and they all point to—[Interruption.] I do not believe that that is my pager.
Thank you, Mr. Deputy Speaker. I look forward to seeing how the Hansard writers will report that—perhaps with dots and dashes.
Everyone to whom I have spoken says that clause 85(1)(d) is an attempt to prejudice the trial, to poison the well. There can be no other reason for setting it out as it has been drafted.
I certainly believe that it is, but having listened to the argument, in many ways the neatest solution would be to take out paragraph (d), as proposed by the hon. and learned Member for Redcar. However, it is for the Government to go away, listen to the debate in the other place and come up with a codification of the current law that does not go nearly as far as clause 85(1)(d), because, from everything that I have heard, that provision will prejudice the trial.
I wish to make two final points. First, many hon. Members have talked about how police investigations will be skewed if clause 85 becomes law, and they are right. Police officers are human beings. What will happen in a police investigation, when they are under enormous pressure to get a result and they have one, two, three or four suspects who have previous? Will they go after them? Of course they will; they are human beings and they will want to get a result, by rounding up the usual suspects—a cliché, I know, but I really believe that that will happen.
The second and final point is about miscarriages of justice. If we pass clause 85 into law unamended, we may get more convictions in the short term, as juries will hear about previous convictions. If the aim is to convict more criminals, I suppose that that will be seen as a success, but I truly believe that, in the longer term, we will live to regret clause 85. I believe that because we have been here before with police evidence. In trials 20 years ago, police evidence was believed far more in the courts than it is today.
Whether we like it or we like it not—as my right hon. Friend the Member for Suffolk, Coastal said—public appreciation and trust in the police has declined. Certainly in courtrooms, police evidence is not always wholly trusted by the jury, and barristers perhaps quite rightly point to previous occasions where police evidence has been tainted or whatever. As a result, it has been more difficult to get a conviction.
My hon. Friend adds to the benefits that I draw from the debate. Does he agree that, as one reflects on it, the bureaucratic disasters attending the introduction of the Police and Criminal Evidence Act 1984, which we are only gradually beginning to see, were necessitated by precisely the problem to which he alludes? Does he also agree that there is altogether too great a chance that, if such a measure were agreed unamended, we would find ourselves with the need to produce a further ghastly bureaucratic measure to constrain the police's tendency to act in the way that he describes, which is exactly the wrong way to go about things?
My right hon. Friend has foreseen the conclusion of my speech, but I shall say it anyway. We will see more convictions, but then we will see evidence of miscarriages of justice and evidence that the police rounded up the usual suspects, possibly because of the pressure that they were under, and that juries were prejudiced by hearing about previous convictions. We will then be back not necessarily to where we started, but possibly to a situation even worse than where we are now. In future, the law may have to be changed, as my right hon. Friend says; or we will have trials in which jurors will tend to have a very jaundiced view of the authorities prosecuting someone with previous convictions.
I have never seen
I rise with some diffidence. I must confess that I have missed about 50 per cent. of the debate. I am sorry about that. However, I am familiar with the issues. I am acutely aware that the guillotine comes down at 7.20 pm and that the constitution rolls on. The Minister must have an opportunity to reply to the many speeches that have been made and the arguments that have been advanced.
I shall contribute briefly to the debate so that those who come to study it hereafter do not get the impression that it was contributed to by only a few Members who had nothing better to do than sit in the Chamber on a warm, sunny afternoon.
I am sure that the purpose of the proposed legislation is well meaning, and no doubt the Government thought about it quite carefully. However, I am concerned, as are others, that the clause is defined as part of the target-hitting or message-sending agenda. Legislation should not be for the purpose of sending messages; it should be for the purpose of making law. If we are not careful, this piece of legislation will just become another early-day motion, or something similar to it, which we can all sign up to because it looks good and will go down well with the readers of certain newspapers. We can then all go home feeling that we have done something to achieve something better—re-election possibly—for our fellow citizens who feel plagued by persistent criminals.
That is not good enough. The arguments that have been deployed this afternoon to unpick the clause that we would like to see amended are ones that need to be answered. They need time to be answered, and perhaps the Minister will not have enough time to deal with these matters today. I hope that his noble Friends in another place will listen to what has been said in the Chamber and will undo what the Government intend to do by means of the clause.
I sit as a Crown court recorder. I have not nearly as much experience as a criminal lawyer as the hon. and learned Members for Redcar (Vera Baird) and for Medway (Mr. Marshall-Andrews). However, my experience of sitting as a recorder and also, and more importantly, going to Judicial Studies Board courses is that real judges—full-time judges and full-time magistrates—are appalled at the low level of criminal justice legislation that we push through the House. We churn it out as though the House were nothing more than a sausage machine.
When I was last at a JSB course, which was about three weeks ago, a senior member of the judiciary came up to me privately and asked, "Are you serious about the contents of the current Criminal Justice Bill and its provisions in relation to previous convictions and bad character?" I said, "I am not, but the Government are, and the Government will have their day." By and large, most of the legislation contained in this great fat telephone book of a Bill will go undiscussed. The judge, like many of his brother judges, threw up his hands and said, "I suppose it makes good work for the JSB."
I urge the Government to pay close attention to the genuine concerns of the judiciary, who have to apply legislation in court when dealing with real criminal cases. I can assure the Minister that they do not enjoy being criticised later for applying badly drafted and ill thought-out laws that Parliament imposes on them. I urge the Government to think carefully before they whip Government Members, either here or in the other place, to support clause 85 as currently drafted.
I do not want to exaggerate, but the wording of the clause is silly and dangerous, and needs a lot of careful thought. If that not does happen, it will end up, as my hon. Friend Mr. Cameron said correctly a moment ago, leading to miscarriages of justice; vast amounts of time and money spent in the Court of Appeal; and Parliament having to come back and look at the matter all over again. Nobody will be the winner—not the justice system, not Parliament's reputation, not the citizens whom we seek to protect by passing good legislation, nor, indeed, the defendants who, although they do not like to go to prison or be convicted, believe that when they are convicted they are convicted fairly under proper rules that they can understand and which everyone accepts as fair. I will not prolong the Minister's wait any longer except to say that there is a lot that needs to be said about this. A lot has been said about it, but the Government must think a great deal more carefully before they advance bull-headedly down the road of passing the clause without further thought.
May I begin by saying that this has been an extremely important debate? The importance that right hon. and hon. Members attach to the issue has been reflected in the speeches by Members on both sides of the House, to whom I have listened intently. I must confess, however, that someone who is not a lawyer might have been left slightly puzzled at the end of our discussion. We heard from some quarters the argument that the proposed changes in clause 85 are so radical and far-reaching that, as regards the operation of the criminal justice system, they will effectively bring the house down. We also heard the opposite argument, which was put most strongly by my hon. and learned Friend Mr. Marshall-Andrews. He argued, as I understood it, that the clause will not make a lot of difference. The truth is, the Government are trying to find a balance in making the proposed change to the law. I am the first to recognise the anxiety that has been expressed about the changes, and I will seek to offer Members some reassurance.
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."
If my hon. and learned Friend will bear with me, I shall complete the point.
In the second case, the previous convictions were clearly not admitted. Mr. Gummer spoke with passion in support of his view that the Bill undermined justice. I ask him to reflect whether the two examples that I have given do not also undermine justice and the public's confidence in the system. The public are not lawyers, and I am not a lawyer, either. They look at the way in which the present rules can be interpreted, and say from a lay person's perspective, but with no less force than the arguments that we have heard from Members much more qualified than I in matters legal, that the current system does not make sense.
Surely that proves my point. The evidence in both those cases ought to have been admitted under what reasonable people understand the law to be. If the Government were merely putting into better terms, more neatly and conveniently, what they understood the law to be, that would be one thing, and I would support it. My argument is that, in the course of doing that, they did not follow the suggestion of the Law Commission but added to it some twirls and baubles of their own, which are themselves dangerous and do not admit of being within the kind of attitude with which we all agree.
I hear the argument that the right hon. Gentleman advances. The conclusion that I draw, however, from the two examples that I have just given is that they make the case for shifting the way in which the system works in favour of an inclusionary approach subject to appropriate safeguards. [Interruption.] The right hon. Gentleman might disagree, but that is the Government's view. On the evidence of those two examples—there are others—and despite the fact that a potentially wide range of bad character evidence can currently be admitted, it is not the case that those provisions are being applied consistently.
Does the Minister not accept that the two cases that he mentioned could lead perfectly reasonably to a different conclusion? That conclusion would be that, if we have not got it quite right in law as to when similar facts should be admitted, we need to address that problem. Equally, if evidence is excluded when it is directly relevant to a case, it should be able to be included. That does not, however, lead automatically to the conclusion that the presumption should be that not only past criminal convictions but past history should be admitted unless certain qualifications apply.
The hon. Gentleman may advance that argument, but it is not one that the Government accept. We are trying to find a system that will provide reasonable certainty and simplicity in the way in which it operates, because the current arrangements are very confusing and are applied inconsistently. Different people reach different judgments in different circumstances. That is the case for our setting out in clause 85 the rules as to the circumstances in which bad character evidence can be admitted, together with the safeguards. I would say to my hon. Friend the Member for Stafford that that is one reason why we are not in favour of having leave arrangements. My hon. and learned Friend Vera Baird set out extremely clearly why, in each of the categories—I know that we take a different view in regard to paragraph (d)—there are cogent arguments for the law being set out in the way that it is, in the clause as drafted.
I am grateful to the Minister for giving way. I will not weary him with this point, but if the doctor case is going to be used as a seminal example in the argument for a serious change in the law, will he tell us why that doctor's form was not admitted before the jury? On the facts that he has given us, any lawyer would say that that was manifestly a case in which the doctor's form should have gone in. That might have been a case not of an aberrant law but of an aberrant judge.
The honest answer is that I do not know why that evidence was not included, but my hon. and learned Friend's point does not make the case. [Interruption.] No, what it illustrates is the case for a change in the approach to these matters, and clause 85 provides for an inclusionary approach, subject to safeguards. I would argue strongly that such an approach will deal with the current problem of inconsistent application of the law while addressing the concerns that have been raised about the circumstances in which certain evidence can be brought to bear in a case. In those circumstances, clause 85(3) provides for the protection to which I shall turn in a moment.
Indeed I do—and the question is, if the system currently allows such evidence to be admitted, why should the same not be allowed in that case and in others of which Members will be aware? The problem that the right hon. Gentleman must address is the way in which the system currently does not work. He need not take my word for that; he need only look at what the Law Commission and Lord Justice Auld had to say about it.
Clause 85(1)(d) provides a straightforward route for the admission of evidence of the convictions we are discussing, so that the law can be transparent and its effects readily anticipated and so that it can be consistently applied, avoiding protracted arguments about relevance whenever possible but subject to the safeguards in subsection (3). The clause does not make evidence of such convictions any more admissible than it would otherwise be: the exclusionary test ensures the exclusion of evidence that is insufficiently relevant. That is a key point. Paragraphs (d) and (e) provide for two slightly different routes, both of which are subject to the same safeguards.
I hope that I can make my hon. Friend understand that giving a judge the right to exclude evidence of previous convictions in exceptional circumstances will not deal with the situation. Although judges are not always ready to receive signals from the House, they are obliged to accept the law as we lay it down. We are about to enact a measure stating that evidence is admissible even if it is utterly irrelevant. How can any discretion allow such evidence to be excluded when we have told judges, in each and every case, "In it goes"?
The answer is simple. When considering an application under clause 85(3), a judge must ultimately decide whether the probative value of evidence covered by paragraphs (d), (e) and (h) outweighs the prejudicial effect. When representations are made on application by a defendant under subsection (3), surely that is the right test and the one that provides the safeguards.
Mr. Cameron got it right when he said that this was about trying to achieve a balance that would give juries the picture and then enable them to make a decision in the end. The Government believe that the intention behind the new inclusionary rule is that evidence of this kind should be capable of being heard, subject to the safeguards in the Bill. It is on that basis that I commend clause 85 to the House.
We have heard 11 speeches during this guillotined debate, and apart from the Minister's, not one voice has been raised in support of the Government's proposition. It has been opposed in 10 speeches and two interventions. Representatives of six parties have said they are unhappy about it.
There is a difference of view about how we should proceed, and we respect each other's differences, but the overriding view is clearly this: the Government's proposal, which they say will preserve in English law the requirement for the prosecution to prove beyond reasonable doubt that a defendant is guilty and for the defendant to be presumed innocent at the outset, will not in fact protect that position adequately.
This is partly technical and complicated, and three options have been discussed. I hope that the House will support at least one of the proposals for change. The Chairman of the Select Committee said that, although this would not be his preferred option, he was willing to support our proposal for the removal of clause 85 and the rebuilding of that part of the Bill. Mr. Letwin said that we should introduce a better protection. Vera Baird suggested that we concentrate on deleting one measure, under which evidence of previous convictions would automatically be admitted. I urge the House to support at least one of those options, but above all I urge the Government to listen to the clear voice saying that this is a dangerous proposal, which goes far further than previous recommendations, should not be accepted by Parliament and should no longer be proposed by the Government.
Question accordingly negatived.
Amendment proposed: No. 23, in page 54, line 30, leave out from third 'the' to 'that' in line 32 and insert
'potential probative value of such evidence is so outweighed by its prejudicial effect'.—[Mr. Grieve.]
Question put, That the amendment be made:—
The House divided: Ayes 171, Noes 284.