My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Davies of Oldham.)
We commence further consideration in Committee on a rather soft ball. As Members of the Committee will see, the proposal is that the word "may" in subsection (1) be replaced by the word "must", and that we exclude subsection (3), which gives the court discretion to,
"make an order under this section only if it appears to it necessary in the interests of justice to do so".
I am really seeking an explanation of why those discretions exist. As the Bill is framed the Court of Appeal has to take a decision,
"that the inclusion of any matter in a publication"— when a retrial is ordered—
"would give rise to a substantial risk of prejudice to the administration of justice".
That is the decision that the court makes. Having made that decision, in what conceivable circumstances would it be right not to order that the matter be not published? I have racked my brains in trying to think of such circumstances. What is the purport of subsection (3) that such an order should be made only if it appears to be,
"necessary in the interests of justice"?
What other sort of publication do the promoters of the Bill have in mind?
We have tabled the amendments in a spirit of puzzlement, to find out exactly what they mean. I beg to move.
It might be appropriate if I explained to the Committee why some amendments no longer appear on the Order Paper. Late last week, I withdrew Amendments Nos. 135F and 135G, which would have preceded this group, and I withdrew others towards the end of Thursday's business. Today I give notice that I shall not move Amendments Nos. 137A to 137D. I have given notice of that intention to the Bill team.
All noble Lords will have been concerned last Thursday to learn that two days in Committee in the Criminal Justice Bill this week were to be jeopardised—to make a very poor pun—by half that time being taken away for the Northern Ireland legislation today and half taken away for the Fire Services Bill on Thursday. Therefore, I have gone as far as I can in withdrawing some of the more probing amendments, leaving my core amendments.
It makes one feel concerned about Government business at this stage of proceedings if we are to lose significant time for debate on the Criminal Justice Bill.
I take note of the remarks made by the noble Baroness, Lady Anelay. I had notice through the Bill team that she would not move the group that includes Amendment No. 137A, and that Amendments Nos. 135F and 135G had been withdrawn. I note what she says about time, but this is already the sixth day of Committee and there is more to come, so there is certainly a substantial amount of time in which to debate these issues.
I turn to Amendment No. 135GA, moved by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135GB, which covers the same area—the area of the court's discretion. On this occasion, I find myself on the side wishing to uphold the court having discretion, rather than being mandated to do something. In other areas, we have found ourselves on the other side of that debate. What essentially lies behind the argument is the question of the circumstances in which the court might take the view that it was inappropriate or necessary in the interests of justice to make a reporting restriction order, notwithstanding that the other condition was satisfied.
It is not for me to envisage all the circumstances in which the court would take the view that it was unnecessary or appropriate to make such an order—particularly as we are referring to the Court of Appeal. I can certainly think of two, but I would not want them to be thought of as exhaustive. One circumstance might be where the court was of a view that there had been such publicity already and that it was unnecessary to make an order restricting further publicity. That might or might not be connected with the second reason that I have in mind as a possibility—that the court might take the view, and the defendant might himself take the view, that it was important for there to be some publicity so that other witnesses, yet unknown, might be persuaded to come forward after learning about the case through the press.
Those may not be the examples that would arise in a particular case. My fundamental point, which is the reason for resisting the amendments, is that the Court of Appeal can be trusted to have the appropriate ability to take into account all relevant factors and to decide when reporting restrictions are necessary in the interests of justice. On this occasion, I would resist trying to put a straitjacket on the Court of Appeal rather than leaving it to its very good sense and discretion.
The noble and learned Lord is using my language when he refers to discretion, the absence of a straitjacket, and so on. That is the sort of thing that we have been saying throughout the passage of the Bill.
One reason why double jeopardy is so contentious is that the decision of the Court of Appeal might get such publicity as inevitably to prejudice a further trial. The points raised by the noble and learned Lord could be taken into account by the Court of Appeal in deciding whether there was a substantial risk of prejudice to the administration of justice. However, once it has come to that conclusion, I cannot see why there should be any further publicity, which might very well affect the fairness of a further trial.
I am grateful to the noble and learned Lord for his response and I shall take the amendment away and think about it to see whether it is a matter that I wish to return to on Report. For the moment, I beg leave to withdraw the amendment.
I shall speak to this amendment and the others in my name and that of my noble friend Lord Dholakia that are grouped with it. I shall also consider whether the clause should stand part of the Bill at all. It is our view that the provisions are unsatisfactory in any event. At an earlier stage we opposed double jeopardy, save in very limited circumstances, as Members of the Committee are aware.
Even though there may be only a limited retrial in certain circumstances, the provisions concern me very much. When an application is made to the Court of Appeal under Part 10, and particularly under Clause 70, the application is made by a prosecutor for "quashing a person's acquittal" and,
"ordering him to be retried for the qualifying offence".
When we look at what is to be retried, however, it seems as though the intention is to have a trial on a broader basis. Under Clause 77(1), the person ordered to be retried must have a trial,
"on an indictment preferred by direction of the Court of Appeal".
Under subsection (5), however, that indictment,
"may relate to more than one offence, or more than one person, and may relate to an offence which, or a person who, is not the subject of an order or declaration under section 71".
There, in terms, the Court of Appeal may make an order that goes much wider than the original application.
The other unsatisfactory element here—the Committee discussed the matter under Amendment No. 135BB—is that the new rules of evidence envisaged in the Bill will apply to that retrial. Consequently, it seems quite possible for a retrial to be ordered following the quashing of an acquittal on a different basis from that before, because the rules of evidence that apply will be different, under subsections (6) and (7).
Normally when one has a retrial, it is for the original offence and the law is taken as at the time of the original trial. That is the current situation as I understand it. Under the Bill, an entirely different procedure is to apply. Fresh evidence that would not have been admissible at the old trial will be admissible under the provisions, which makes it even more unsatisfactory and unacceptable that any retrial should take place at all. I look forward to hearing the Minister's explanation. I beg to move.
One can readily imagine the circumstances in which the DPP and the police might consider it convenient to try an additional person on the same indictment as a person who is to be retried, perhaps where new DNA evidence implicates both an acquitted person and his or her accomplice who had not been tried before. However, what circumstances do the Government have in mind in relation to allowing the indictment to contain additional offences in respect of the original accused person who faces a retrial? Would those offences have to be new ones of which he had never been acquitted, or would the order for retrial on one offence allow related offences of which an accused had been acquitted to be retried as well?
There would be two consequences of Amendment No. 135GD, tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135H, tabled by the noble Baroness, Lady Anelay, if they were accepted. First, they would prevent the court from issuing an indictment against more than one defendant if all the defendants listed on the indictment had not previously been tried for the offence. As the noble Baroness said, that would mean that, for example, if new and compelling evidence came to light that suggested another person as well as the original suspect was guilty of the crime, it would not be possible to try the two together.
One could envisage circumstances in which the evidence that had come to light indicated not only that the original defendant was guilty, but that he had a partner or accomplice—perhaps someone engaged in a joint enterprise with him—who was guilty of the offence. There would be enormous difficulties if one prevented the trial taking place with that other person involved as well. Of course, the other person has no double jeopardy complaint to make in relation to the matter, as he has not been charged with or tried for the offence before. To prevent the indictment from covering that other defendant seems wrong. It would prolong the retrial process and delay the opportunity to reach the outcome that justice demanded.
The other effect—bringing a different charge against the original defendant along with the charge for which the Court of Appeal's leave is needed—was particularly referred to by the noble Baroness. There could be circumstances in which evidence had come to light that, in addition to the original charge, the suspect was credibly believed to be guilty of some other offence as well, one that it would be appropriate to have tried at the same time. If it were an offence with which he had not been charged and was not an alternative verdict to the original offence of which he had been acquitted, there would again be no issue of double jeopardy because the person would not have been previously tried and acquitted of that offence.
I assure the Committee that we are not attempting to get round the requirement that, where there has been a qualifying offence of which there has been an acquittal, all the safeguards and requirements that apply to that need to be satisfied before that offence can be the subject of a further charge. The amendments would prevent it being possible to add another defendant who had not previously been tried, or another charge that had not previously been the subject of an acquittal and in relation to which the principle of autrefois acquit would not apply.
The second category was dealt with briefly by the noble Lord, Lord Thomas, in relation to his Amendments Nos. 135HA and 135HB. I shall take a moment to explain them, which I hope will help the Committee to see that there is no problem behind the provisions.
The present position under Schedule 2 to the Criminal Appeal Act 1968 is that a transcript of the evidence of a witness who testified at the original trial can be admitted as evidence in retrials, which can currently be ordered; for example, where the Court of Appeal has found that a conviction was unsafe. That is subject to whether the parties agree and whether the judge is satisfied that the witness is dead or unfit to give evidence; or that all reasonable attempts to find him and secure his attendance have been made without success.
Therefore, there is already provision in existing legislation on retrials for transcripts of evidence of witnesses who testified at the original trial to be admitted. Noble Lords will be aware that there are certain other circumstances where they can be admitted, such as where it can be shown that a witness, through fear, is not prepared to give evidence, having given a qualifying statement.
The provisions of Clause 109(2), which are referred to in subsection (6), are not put in quite the same terms, but they largely cover the existing area where transcripts on retrials may be allowed. I do not want to pre-empt the important debate that I know will take place on Part 11, which relates to hearsay. The consequences of that debate, whatever they are, will follow from that. However, the provisions to which the noble Lord referred do not introduce, in terms of evidence, material other than is referred to in subsection (6), which is certain hearsay evidence; that is, transcripts in those circumstances or in the circumstance identified in Clause 107(1)(d)—a further category. That is where the court is satisfied that despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible and the witness is for some other reason not available, subject to the requirement of the court.
I am sure that the noble Lord would not wish to undermine the principles under which the courts can in certain circumstances use trial transcripts for a retrial. One consequence of his amendment would be that a trial transcript could not be used even if it pointed to the innocence of the accused. That relates to all circumstances in which transcripts are to be available. The existing law recognises that where there is to be a retrial, it is desirable to have available the evidence that was available at the first trial. It may help the accused; it may help the prosecution. That is what the provisions are designed to do.
There are of course safeguards in Part 11. We will come to those when that is debated, including in Clause 119 the safeguard that the court retains the residual discretion under Section 78 of PACE to exclude evidence in the interests of fairness. It also includes a duty under Clause 118 to stop a trial where a conviction would be unsafe, because the prosecution's case is based wholly or partly on unconvincing hearsay. We will come to all of that, I am sure, when we debate Part 11. At this stage, the principal issue is whether in certain circumstances it should be possible at the retrial to use transcripts of the evidence that was given at trial, as the existing law allows.
Amendment No. 135HB would delete Clause 77(7). This is a rather technical point and perhaps I may briefly draw your Lordships' attention to Clause 124, which updates the provision for the admission of transcripts and depositions in retrials that can currently be ordered by the Court of Appeal; for example, where a conviction is quashed because it is unsafe and a Court of Appeal orders a retrial. The provisions of Clause 124, as noble Lords will see, reflect precisely that in Clause 77(6).
It has long been a principle that witness depositions are not admissible as evidence at retrials if the witness gave evidence at the original trial. As Members of the Committee will know, in certain circumstances a deposition may be admissible at an original trial, but if the witness gave evidence at the trial, that evidence, rather than a deposition, would be admissible. It may be the only occasion on which the evidence has been tested—or certainly extensively tested—during the course of the trial by cross-examination. We intend simply to apply the same principle to retrial—that the deposition, which might otherwise be admissible, should not be admissible in place of the provisions relating to transcripts of evidence. I hope that that answer gives the noble Lord some comfort.
Finally, Clause 77 stand part appears in the group. We have previously debated at some length in Committee the objections in principle that have been raised to this part of the Bill. Clause 77 is critical to the double jeopardy provisions because without it the rest of that part does not work. I do not intend, on this occasion, to rehearse the arguments that have already been made in Committee. Maybe we will come back to the issue at a later stage, but that is not for me to say. To put our position on the principle of double jeopardy briefly, there has been a consensus for reform. The Lawrence report, the Law Commission, the Home Affairs Select Committee and Sir Robin Auld backed the reform in principle. It will apply only in the most serious cases—we have yet to debate what the final list of cases should be—and will be subject to important safeguards. It will apply only in exceptional circumstances. Those, in brief, are reasons in principle for supporting it. I give way to the noble Lord, Lord Renton.
I should have spoken sooner and before the noble and learned Lord rose. Perhaps I may make a few points now which I am sure are relevant to the Question whether Clause 77 stand part. In my opinion, it must stand part. We would be leaving a terrible void in the Bill if we did not have it or something like it. Between now and Report, I hope that the noble and learned Lord or the Minister responsible will consider some minor redrafting. In four subsections, (1), (3), (6) and (7), instead of referring to "retrial", the text refers to "trial". It must refer to "retrial" for the sake of clarity and to avoid confusion. Also, in subsection (4), reference is made to,
"a bar to his being tried for the qualifying offence".
That must obviously read "retried". I hope that those simple drafting amendments will be made on Report.
There is a further matter that should delay any decision which your Lordships might wish to make about Clause 77. First, I refer to subsection (6)(a), where we find that,
"Evidence given at a trial pursuant to an order under section 71(1) or (3) must be given orally if it was given orally at the original trial".
It then says,
"unless . . . section 109 applies".
I believe that we must consider Section 109 very carefully and rather sceptically because it enables hearsay evidence to be produced which is not admissible at present. We must consider that controversial point very carefully as it would, of course, affect the meaning of Clause 77.
Secondly, I want to make one other point that arises from what the noble and learned Lord said. He referred very properly to the effect of Clause 124 on this clause. That is another matter which would affect the final composition of Clause 77.
I am grateful to the noble Lord for his intervention and for his support for Clause 77 to stand part. I shall carefully consider—and have carefully considered—his comments on the drafting. At present, it appears to me that the matter is sufficiently clear but, as always, I shall ensure that it is examined.
I turn to the noble Lord's comment on subsection (6), which refers to Section 109. Previously I may not have been as clear as I should have been about this matter. Largely, Section 109 replicates the existing procedure for the admission of transcripts at retrials which can be ordered. That is not the case completely but, as I said, under the Criminal Appeal Act 1968, transcripts of witnesses who gave evidence at the original trial may be admitted in certain circumstances, including a number of the circumstances set out in Section 109.
Perhaps I may alert my noble and learned friend that, before the Report stage, I shall table an amendment seeking to leave out the whole of Part 10 of the Bill. I give notice that the entire issue of double jeopardy is, in my view, a departure from principles of a profound kind, and this Chamber should be given the opportunity to vote against such a departure. I shall have that amendment placed before this House prior to Report so that no one is taken by surprise.
We would not be taken by surprise if we were given notice that the noble Baroness was going to oppose the Question whether clauses stand part. I believe that she made her position perfectly plain on a previous occasion.
Perhaps I may deal, first, with the offence aspect. As I pointed out to the noble and learned Lord when I moved the amendment, the application to the Court of Appeal under Clause 70 is for an order that the person whose acquittal is quashed should be retried for the qualifying offence. That is what the application is for—it is for a retrial for the qualifying offence.
What concerns me—particularly having regard to the noble and learned Lord's reply—is that a person could be acquitted of offence x, have that acquittal quashed, be ordered to be retried for offence x, but then, on the indictment that is then produced for the retrial, find that he is charged with offence y arising out of the same facts. If the noble and learned Lord can give me an assurance that the retrial that will take place will be a retrial of the qualifying offence—namely, offence x—that would greatly assuage my fears in relation to the provisions of subsections (1) and (5). Perhaps the noble and learned Lord would like to consider that point first.
I shall consider that and I shall ensure that I write to the noble Lord. But if the noble Lord is concerned that the defendant might be tried in relation to some other offence, then, in any event, there is no need for the Court of Appeal to give leave for that. The defendant can be tried for the other offence if he has not been acquitted of it or if there are circumstances where there might have been an alternative verdict to the original offence for which he was tried. But if it was not an alternative verdict to the offence for which he was tried, then, in any event, the doctrine of autrefois acquit would not prevent him being tried for it.
As I understand the principle of autrefois acquit, it refers not simply to the offence for which the person has been acquitted but to any offence that arises out of the same facts. That is my understanding, but perhaps we can give the matter further thought.
I am grateful to the noble Lord, Lord Renton, for following my thoughts on the evidence aspect. It really does appear—particularly when one has regard to Clause 107(1)(d)—that the retrial will take place under different and separate evidential rules. Those rules include the possibility of hearsay evidence being admissible. Therefore, if a person has been acquitted of an offence at one moment, his acquittal is quashed, he is retried and he then faces an entirely new set of principles for that retrial. That seems to me to be fundamentally unfair. It is one further reason for supporting, to a large extent, the application that the noble Baroness, Lady Kennedy of The Shaws, will make on Report.
Before the noble Lord sits down, perhaps I may ask the noble and learned Lord the Attorney-General a question. In his reply to the noble Lord, Lord Thomas, did I understand him to say that one effect of the noble Lord's amendment would be that it would be impossible to add a further defendant to any separate indictment when a retrial had been ordered? If I did hear him say that, is he imagining circumstances in which a further defendant could be added so that a person who had been tried and acquitted as a single defendant could then have an order made for his retrial and find himself one of several defendants? That would probably substantially change the nature of the case in which he was involved.
I did say to the noble Lord, Lord Thomas, that one of the effects of his amendment would be to prevent an additional defendant being added to the indictment. The example that I gave would be one in which the further new and compelling evidence—because new and compelling evidence there would need to be in order to justify the application to the Court of Appeal—might show that the defendant had not been, as had perhaps been alleged at trial, acting alone but acting with another. One could envisage circumstances in which the evidence now showed in a compelling way that a murder or some other serious offence that had been committed was in fact the result of two or more people acting together. In those circumstances, it would be right that the defendant should be tried not on his own but with the other person or persons who the new and compelling evidence now indicated were also responsible for the crime.
Would there be any duplication on the adding of a further defendant, or does the noble and learned Lord the Attorney-General envisage that that may happen in any case? Alternatively, would it be the case that, for some reason, the other defendant was not available to be tried at the time of the original trial? It seems to me that, as the noble and learned Lord the Attorney-General has accepted, it will change substantially on his retrial the nature of the case against a man who has been acquitted.
Again, I shall give further thought to this matter. In answer to the noble Lord, Lord Carlisle of Bucklow, there are two points. First, these other defendants have no defence against being tried in any event. They have not been tried before. Therefore, there is no reason that they can put forward based upon the fact of the first defendant's acquittal to say that they should not be tried. Whether they have some other grounds for saying that they should not be tried arising from the circumstances of the case is not a matter for today.
Secondly, the Court of Appeal will have to be satisfied that it is right for the order to be made in relation to the first defendant. So, both of them are covered, it would seem to me, by those points.
Can the noble and learned Lord assure the Committee that in its final form the law will be so drawn that the Court of Appeal will know that there are other defendants who will or may be tried? If that is not the case, how can the Court of Appeal decide whether it is fair for the defendant whose acquittal has been quashed to be tried with the other defendants?
Those of us who conduct criminal cases have been in many trials in which the evidence against co-defendants has been the subject of applications about the fairness of the trial against one's client. In such circumstances one often makes applications for severance. They are not usually successful but very, very occasionally they are. If an order has been made by the Court of Appeal that the previously acquitted defendant should be retried, the retrial judge will be very inhibited against ordering severance unless the Court of Appeal has had the opportunity of considering all the circumstances, including that there will be co-defendants in the retrial.
I hear what the noble Lord says. I shall not, while on my feet and without consideration or advice, give the assurance for which he asks. I shall certainly consider the point. I think he makes more of it than is justified but I shall certainly consider it and come back to the issue one way or another.
Would the noble and learned Lord also take into account the fact that the new and compelling evidence could not be derived from the confession of a co-accused because that would not be evidence against a person whose acquittal was quashed? Nevertheless, as the noble Lord, Lord Carlisle of Bucklow, pointed out, the presence of co-defendants giving evidence, perhaps in a cut-throat defence, would have a marked difference upon the way in which that trial was carried out.
The more one goes into these provisions for abolishing the centuries old rule of double jeopardy, the more one realises the wide possibility of miscarriages of justice arising. No doubt we shall come back to that.
The question of what happens when there are co-defendants and defendants is something which exists at the moment. It does not arise as a result of the retrial provisions in this part of the Act.
Perhaps I may press the noble and learned Lord to reply to the query from the noble Lord, Lord Thomas of Gresford, on the Benches opposite, about whether in retrial, perhaps years after events, new rules of evidence or newly abandoned rules of evidence will mean that a very different kind of trial will take place. It may be that one would start reviewing all kinds of cases and—in the light of the fact that if the Bill goes through, previous convictions and hearsay will now be evidence in cases—reconsider many past convictions in the light of new rules of evidence. Is that what will happen?
We have had this debate. It arose in relation to Clause 72, which makes plain under subsection(5) that,
"it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person".
That has been the subject of discussion. It does not arise under this clause. What arises under this clause is the admissibility of transcripts of evidence which has been given at trial. That is all that arises under this clause. It may be, I know not, that we shall come back to Clause 72 at a later stage but I do not intend to go over those arguments again now.
Clearly, we shall have a huge debate on this on Report. I note that the noble and learned Lord said, "at the moment". I am sure that he will reflect upon the answers he has given. I do not intend to press the amendment for the moment and beg leave to withdraw it.
In moving Amendment No. 136 I shall speak also to Amendment No. 137. As is obvious from even the most cursory glance, Amendment No. 136 is simply a technical drafting amendment to make sense of Amendment No.137, which is consequential upon and part and parcel of Amendment No. 136. Indeed, when the amendments were tabled in another place, perhaps the Public Bill Office there was a little less precise than our own very careful people here. So I am sure that we have the superior approach in this House.
We have been discussing safeguards which are required in this very sensitive and difficult area; that is, the relaxation of double jeopardy rules. Amendment No. 137 addresses the question of whether there should be judicial authorisation of a reinvestigation into an acquitted person's case. Indeed, we say that there should be just such a safeguard.
Clause 78 requires the police to obtain the consent of the Director of Public Prosecutions before taking certain major steps in the reinvestigation of cases where new evidence has come to light or where there are reasonable grounds to believe that further investigation will give rise to new evidence.
The whole process of retrial does indeed give rise to many concerns, some of which have been expressed today, but which were expressed in greater detail at our previous session on 17th July. If we do go ahead with relaxing the rules on double jeopardy, we on these Benches say that we must have the highest level of safeguards to ensure that the process works as fairly and effectively as possible. It is our view, therefore, that the DPP should seek the authorisation of a Crown Court judge before deciding that an acquittal is not a bar to a retrial and giving his written consent to investigation. The DPP could make an ex parte application to a judge and secure the court's sanction of the process, which, as we have heard on previous occasions, is bound to have a drastic effect upon the lives of the acquitted person and, indeed, upon the victim and all the families involved.
The changes to the rules of double jeopardy would make a massive alteration to our basic principles that currently govern the grounds on which someone can be arrested and investigated. When my honourable friend Dominic Grieve raised this matter in another place as long ago as January of this year, the Minister suggested that the problem could be solved by the use of judicial review of the DPP's decision. Since January we have taken advantage of the Government's rather leisurely stroll through the Bill until it now reaches a race towards the end. I have in mind that, indeed, the Government delayed the second and third days on Report in another place because they put in such a substantial number of new clauses. Some were for very good reasons, but there has been some delay at earlier stages of the Bill.
We have considered the Minister's response since that early stage and we are still not convinced that judicial review provides the appropriate safeguard. It is too cumbersome and comes too late. We prefer the route of judicial control because that refers the matter to a person who is seen to be independent of the Government in a way that the DPP is not. However great that person's abilities may be, he will still be seen by some as a state administrator making a highly sensitive decision.
Our amendment does not introduce some kind of cumbersome mechanism: it is the reverse; it is intended as a simple safeguard, which we hope fends off the need for time-consuming judicial reviews and unnecessary stress on those who should perhaps not be brought for retrial. I beg to move.
It may be helpful to say a few words about Clause 78 and what it covers in order to put the amendment in context. Clause 78 allows the police to reinvestigate an acquitted person in respect of the qualifying offence of which he has been acquitted only with the consent of the Director of Public Prosecutions.
The DPP must consider in giving his consent—subsections (4), (5) and (6)—whether the person's acquittal acts as a bar to a retrial before giving his consent to reinvestigate. He must not give his consent unless he is satisfied that—subsection (6)—as a result of the investigations there is, or is likely to be, sufficient new evidence to warrant the conduct of the investigation and that it is in the public interest for the investigation to proceed.
The steps which therefore require consent are set out in subsection (3)—the arrest or questioning of the acquitted person; a search of him or his premises; a search of a vehicle owned by him; a seizure of anything; or taking his fingerprints or a sample from him. The application itself is subject to the further safeguard that the application must be made—subsection (4)—by an officer who, if we are talking about the Metropolitan Police or the City of London Police, is of the rank of commander or above, and in any other case of an assistant chief constable.
Those safeguards appear to us to be very substantial. They come of course before the safeguard of the requirement that there is ultimately an application by the DPP that he has considered the case personally and which is accepted by the Court of Appeal. We do not see—and are not persuaded to accept the amendment therefore—the necessity and the desirability of adding an additional requirement that the DPP should have to seek the leave of a Crown Court judge.
I am very grateful to the noble and learned Lord for giving way. To enable the Committee to determine its views on these amendments, can he explain what is meant in Clause 78(3)(a) by "question him"? Does it mean question him under caution or does it include such methods as merely asking informal questions or obtaining a witness statement without his being questioned under caution? It would perhaps seem logical that no form of questioning should be permitted without the consent of the DPP under the scheme that the Government have in mind.
At the moment I read it as I suspect the noble Lord reads it. It states "question him" without qualification. But I shall take the issue away to see whether there is any suggestion to the contrary. If that is right, it assists in demonstrating the significance and strength of the safeguards that are being put in place.
The point on the amendment is this: the Director of Public Prosecutions is more than senior and experienced enough to take a decision on whether the police should, in re-opening an investigation into an acquitted person, take the steps which are set out in subsection (3). Having him do that provides a very important but sufficient safeguard to prevent the acquitted person being harassed by the police, because that is what one seeks to protect the acquitted person against. At this stage of the reinvestigation, it is quite appropriate for the decision to be taken by the prosecuting authorities rather than the courts.
To involve a Crown Court judge in proceedings at this stage would make the proceedings more cumbersome. The layers of safeguard that have already been included are more than sufficient. As to the critical decision of whether or not a retrial should be permitted, of course we do not leave it to a Crown Court judge to decide. That will be, after personal consideration by the Director of Public Prosecutions, for the Court of Appeal. At the end of the day, that judicial scrutiny will be a very important safeguard for the individual. So I cannot accept the amendment and invite the noble Baroness not to press it.
I am grateful to the noble and learned Lord for giving way. He was a little too quick for me at the beginning because I had intended to support both this amendment and the next substantive one. With the permission of the Committee I shall do so now. I was waiting to hear whether there would be any support for the amendment from the Liberal Democrat Benches, but that did not happen.
The Committee may remember that I do not oppose Part 10 of the Bill, root and branch, as do some noble Lords on these Benches. But I see a risk of great injustice in individual cases, especially if the power to order a retrial is to be exercised retrospectively under Clause 69(6)—for example, in respect of a committal before the Act comes into force.
I gave an example of a case of a man acquitted of a crime five or 10 years ago, before the Act comes into force. He then makes a clean breast of the issue in private to his wife. In my view—a view I expressed at the time—it would be quite wrong for such a person to be deprived of his existing—accrued—right not to be tried again by retrospective legislation. Surely, that should be axiomatic.
When he came to reply on this point, the noble and learned Lord the Attorney-General did not, with great respect, deal with the issue very satisfactorily because he did not deal with it as a point of principle, which of course it is. Instead he was content to give an example from the other end of the spectrum—the Dunlop case. In that case—the Committee may remember—the man admitted within a few days of his acquittal that he had committed the perfect crime and bragged about it in a public house. The noble and learned Lord the Attorney-General said that he would not be able to look the mother of that victim in the face unless he could tell her that the Act would apply to her.
The contrast between the two cases—the case I put before the Committee and the one put before the Committee by the noble and learned Lord the Attorney-General—shows as clearly as anything could the need for these amendments. There will not be, as the Attorney-General accepts, many of these retrospective cases. Indeed, I doubt whether there will be many cases under these retrial proceedings altogether. But what surely is needed right at the outset is a means of distinguishing the cases where there is some merit—the example given by the noble and learned Lord—and the cases where there is no merit, the kind of case, for example, which I cited. That decision should be taken long before the case reaches the Court of Appeal and should be taken before ever the investigation under this clause starts, because the investigation itself in a case where there is no merit could cause grave injustice.
An ex parte application to the judge at the very start of the investigation seems the ideal way to achieve that objective—to distinguish at the outset between the cases where there is merit and those where there is none. I therefore hope that, although the Government have said that they will not, they will accept the amendment or at least reconsider it. It could not possibly do any harm; indeed, it could do nothing but good as it would take the initial and all-important decision from the hands of the Director of Public Prosecutions and place it in the hands of a Crown Court judge, where it belongs.
Perhaps I may seek similar indulgence, not having risen to speak at the right time. I support the effective amendment in this grouping of two, but for a slightly different reason from that principally advanced by my noble friend on the Front Bench. I do not think that there is any view in the country that the Director of Public Prosecutions is other than independent of the Government. We all know that he is by statute superintended by the Attorney-General, but that is by the Attorney-General acting in his judicial capacity, not in his capacity as a partisan member of the Government.
I support the amendment because I suggest that it is needed to provide a measure of protection for the director. He is head of the Crown Prosecution Service and one criterion that will have to be fulfilled if the process is to work is that the evidence that is sought to be adduced was not reasonably available to the CPS, the police or the prosecutor at the time. It is a measure of necessary—or at least desirable—protection for the DPP, who is to that extent slightly parti pris, that the process cannot proceed to the next stage unless it has the consent of a judge of the Crown Court obtained on an ex parte application. I suggest to the noble and learned Lord the Attorney-General that on that basis the amendment warrants acceptance.
I hope that I did pause and that the noble and learned Lord, Lord Lloyd of Berwick, missed the opportunity, but, given that both he and the noble and learned Lord, Lord Mayhew of Twysden, commented on it, I say simply that I shall not deal again with retrospection. I am sorry that the noble and learned Lord thinks that I did not deal with it satisfactorily; that may be simply because we take different views on the matter. If we return to it we shall have another opportunity.
I am grateful to the noble and learned Lord for confirming that, as he knows from his experience holding the office which I am privileged to hold now, the Director of Public Prosecutions is most certainly independent of government and can be trusted to make difficult decisions. That is the final point. The noble and learned Lord suggests that the director might welcome the protection of going to a Crown Court judge.
Well, the director and his senior staff have to take many difficult decisions all the time. They are frequently misunderstood, sometimes unpopular; it is the nature of the public prosecution service that they must make those difficult decisions, applying the evidence objectively, considering it impartially and deciding in accordance with the statutory tests of the Code for Crown Prosecutors. This case is no different.
I am grateful to the noble and learned Lord the Attorney-General for giving way. I do not quite understand why the Government are reluctant to insert a judicial figure into the process, given that that would make clear that the Government regarded a decision to undertake a second investigation of an acquitted person as much more serious than one to undertake a prosecution of a person who has not yet been acquitted. The fact that the Director of Public Prosecutions is a person who can be trusted to make difficult decisions is not in question. What is in question is how we make clear, if the Bill is to be enacted, how much more seriously we regard a decision to re-open a case—it will be a serious case by dint of what the Government have in mind.
Before the noble and learned Lord replies, the value of the provision—my initial reticence should not be taken as a sign that we do not support the amendment—is that it makes it absolutely essential for the director and the police to make their case without going to question the acquitted person once again, so that their case does not depend on a re-questioning of the acquitted person but that everything is in place before the DPP's consent is given. That is the value of it.
The amendment seems to have gathered much support in all parts of the Committee—except, I make clear, the Government Benches, where we remain resistant to it.
I answer the right reverend Prelate in this way: the provisions make very clear that this is a more serious business. In order to prosecute someone, even for a serious offence, one does not need a senior police officer—a commander or assistant chief constable—to decide that investigations can be opened; one does not need the Director of Public Prosecutions personally to decide whether the case should go ahead; one certainly does not need a Court of Appeal to decide that it is a proper case before an indictment can be lifted. There is more than enough in the Bill to illustrate how importantly the Government take the need for safeguards; the safeguards are there.
I am grateful to all Members of the Committee, who have brought different perspectives to what I thought was a fairly modest and straightforward amendment. As the debate gathered speed, I gathered education, but also resolve. In the development of a relaxation of a rule by which we are all entering new territory, no one can be thought to have experience. However good a DPP is, this will all be new for everyone taking part. This is one safeguard that we need at the beginning of the process. I intend to test the opinion of the Committee.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 79 [Urgent investigative steps]:
[Amendment No. 137A not moved.]
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Bail and custody before application]:
[Amendments Nos. 137B and 137C not moved.]
Clause 81 agreed to.
Clause 82 [Bail and custody before hearing]:
[Amendment No. 137D not moved.]
Clause 82 agreed to.
Clauses 83 to 89 agreed to.
moved Amendment No.137E.
After Clause 89, insert the following new clause—
(1) There are to be rules of court (to be called "Criminal Evidence Rules") governing the use of evidence in the criminal courts.
(2) Criminal Evidence Rules are to be made by a committee known as the Criminal Evidence Rules Committee.
(3) The power to make Criminal Evidence Rules includes power to make different provision for different cases or different areas, including different provision—
(a) for a specified court or description of courts, or
(b) for specified descriptions of proceedings or a specified jurisdiction.
(4) Any power to make or alter Criminal Evidence Rules is to be exercised with a view to securing that—
(a) the criminal justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed."
It is fortuitous that the noble Baroness, Lady Scotland, is the Minister responding to this group of amendments, because she will recall the time that we spent on the Courts Bill, when the Government introduced several clauses that set into statute rules committees. The short explanation of our purpose is to ask the Government to explain why a rules committee with regard to evidence will not also be set in statute. I beg to move.
I am happy to respond, and will try to do so fully, so that I can explain how we will make the provision work.
Amendment No. 326, which has not yet been printed, in the names of the noble Lord, Lord Kingsland, and the noble Baroness, would establish a criminal evidence rules committee. The amendment is based on provision in the Government's Courts Bill—as the noble Baroness said—for a criminal procedure rules committee. However, the remit for the committee proposed by this amendment would be rules of court governing the use of evidence. We fear that this amendment may be based on a misunderstanding, although from what the noble Baroness said, she may be seeking only clarification.
We are entirely sympathetic to the proposal that rules of court should be made by a rules committee in future. However, that is already the effect of provisions in the Courts Bill, as I have mentioned. That Bill fully empowers the new criminal procedure rules committee to make rules of court for criminal proceedings.
Rules of court deal with a level of detail about practical and procedural matters that it would be inappropriate to include in primary legislation. They therefore cover the detail of, for example, notice of appeals to the Crown Court, the jurisdiction to award costs and applications for witness' summons. They also cover rules in support of evidential matters—rules governing applications for leave to adduce previous sexual history evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999, applications for special measures directions for witnesses also under the 1999 Act and applications for evidence to be given through live link from abroad under Section 32 of the Criminal Justice Act 1988.
Provision for rules of court relating to evidence are also made in this Bill—in Clause 104, for example, which provides for rules to be made for a defendant to give advance notice of his intention to rely on the bad character evidence of a co-defendant. Clause 125 also provides for rules to be made in relation to notice requirements when a party wishes to adduce hearsay evidence. Those are all matters that, in the future, will properly fall under the scope of the criminal procedure rules committee. That strikes the right balance in allowing appropriate matters of practice and procedure to be dealt with by the new committee, while maintaining Parliament's current role in relation to changes in the substantive law.
Therefore, although I absolutely agree with the thrust of the amendment that rules of court should be dealt with by a rules committee, I do not consider that it is necessary for a separate committee to be set up for that to be achieved. I do not believe that that was what the noble Baroness proposed. I think that she just wanted me to confirm that the hours and hours that we spent on the Courts Bill will not be wasted. I can assure her that they will not. I hope that that explanation of the role of the new criminal procedure rules committee reassures noble Lords and that the noble Baroness will feel able to withdraw the amendment.
I am grateful to the Minister because she has been able to provide the further clarification and certainty for which I hoped. We spent goodness knows how many hours and days on the Courts Bill, as the Minister said. The difficulty is that, when that Bill returns to us from another place, we will not have the opportunity to ask the questions that I just asked with regard to the criminal procedural rules committee, because we did not have this Bill before us when we debated that Bill, so I could not ask questions within that context—hence the rather peculiar reasons for tabling these amendments today.
It is also important that the Minister's clarification and explanation are available to those practitioners who will read this Bill and will want to see how Clause 104 in particular will ultimately operate. I am grateful to the Minister and beg leave to withdraw the amendment.
"For the purposes of this Chapter, evidence of a person's bad character is evidence which shows or tends to show that . . . 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 intention of the amendment is to probe the expression "tends to show". It seeks to probe not only the degree of probability that the Government have in mind but whether its scope could include an acquittal, in circumstances in which it was admitted that an offence was committed other than that on the indictment. I beg to move.
I support the amendment because the clause permits the admission of evidence of behaviour as evidence of bad character in circumstances that are dangerously tentative. The words "tends to show" perform the greater part of the mischief. Although they are not the whole of it, they are bad enough.
Let us suppose that we, as prosecutors, are addressing the defendant and we are explaining our attitude to this part of our case. We might say that we rely on this aspect of the defendant's behaviour because it tends to show that he or she is disposed to behave in a way that,
"might be viewed with disapproval by a reasonable person".
That would have to be,
"in the opinion of the court" in this clause. However, how can one be more tentative than to conjure up a concept that "tends to show" not that the defendant has behaved in the way alleged, but that he is disposed to have behaved in a way that it suits the Crown to allege, and which might—not must—be viewed with disapproval by a reasonable person?
I have not been sufficiently diligent to look up whether the expression "tends to" is to be found in the criminal law. It may be that, in proper circumstances, it is, but it certainly ought not to appear here, for the reasons that the noble Baroness has given and I have sought to enhance.
We support the amendment because we do not understand who will decide. Presumably, it is the judge, in the first instance, because there is a reference to,
"the opinion of the court".
The judge to whom applications for the admission of evidence of bad character are made must carry out an inquiry into whether the evidence that is relied on by the prosecution,
"tends to show that he . . . is disposed to behave, in a way that . . . might be viewed with disapproval by a reasonable person", not by the judge. The judge is set an almost impossible task. The provision could refer to all sorts of evidence that may be before the court.
The most relevant matter—the noble Lord, Lord Kingsland, briefly referred to it—is whether the evidence tends to show that a person,
"is disposed to behave, in a way that . . . might be viewed with disapproval", if he has faced a trial and been acquitted of an offence. If evidence of acquittal is to be introduced as evidence of bad character, we have run a coach and horses through the entire corpus of the English criminal law as we have known it over centuries.
I too support the amendment. Criminal cases are tried by an evaluation of evidence. When the evidence is given, the jury is instructed in legal directions by the judge on how to evaluate certain types of evidence. It would be interesting to know whether the Government have asked the judges who draft the specimen directions for the Judicial Studies Board whether they have attempted to produce a specimen direction whereby a jury could have explained to it how it is supposed to evaluate something that is not evidence, in the sense in which that word is generally understood.
Will the noble Baroness tell us how the Government expect juries to be directed to evaluate such material? In common with others who spoke, I suggest that it cannot be done in a sensible and just way.
I hope that my noble friend will think again about the provision. I speak in the main as a supporter of the Government but the provision is inequitable. All I ask is that my noble friend thinks about it again.
I have been much persuaded by the arguments adduced by the Opposition and by the Liberal Democrats. A prima facie case has been made that the matter should be thought about again and brought back to the House on Report.
I too hope that the amendment will be made. The words "bad character" are difficult, when applied to the subsection. There are people who behave in ways that might be thought likely to be,
"viewed with disapproval by a reasonable person", but who do so only in certain circumstances. I think, for example, of people who behave in certain ways under extreme provocation but who would not behave in those ways otherwise.
It is extremely difficult to know how to decide whether certain sorts of behaviour tend to show something; that is, are witness to a tendency to behave in such a way in all circumstances or, in particular, in circumstances relevant to the issue under trial. It is a doubtful characteristic to introduce by way of mere words, such as "tends to show".
It is, in a way, unfortunate that we are discussing the amendment in the context of Clause 90. As everybody has said in the debate so far, the phrase "bad character" is given an extraordinarily wide definition in Clause 90. I refer to what the noble Lord, Lord Renton, said: the key thing is whether evidence of bad character is admissible. For that, we must see Clause 92, for the non-defendant's bad character, and Clause 93, for the defendant's bad character. There is a list of requirements that must be satisfied for the evidence of so-called bad character to be admissible in court. That is what is important.
Like the noble Lord, Lord Borrie, I had intended to reserve anything that I wanted to say until we debated Clauses 92 and 93. However, as we have gone into the area already, I must say, without hesitation, that this is the most dangerous part of the Bill. It is thoroughly bad, and I hope that it will be thrown out as a whole. However, I shall stick to the amendment for the moment.
How vague can we be? The Bill refers to evidence that "tends to show" that a person has behaved in a way that,
"in the opinion of the court, might be viewed with disapproval by a reasonable person".
How on earth is a judge to explain to a jury that it must be satisfied that a piece of evidence "tends to show" that such behaviour,
"might be viewed with disapproval by a reasonable person", not by them or by anybody else, but, apparently, by "a reasonable person"? With respect, I think that the whole clause is nonsense.
What about the person who can be shown to have set out to commit an offence but then to have decided that he will not, after all, because something has appealed to his conscience? He has behaved in a way that showed that he was disposed but decided to change that. Is he to have his character put in in that way? Once one is disposed, can one not cancel that disposition?
The noble Lord was as telegraphic in his delivery as ever, but some of the issues that have been raised by noble Lords have widened the debate. It may be helpful if I give a broader exposition of the Government's position, to respond, in particular, to the import of what the noble Lord, Lord Kingsland, asked for. He said that it was a probing amendment.
Before I go into detail, I shall sound a note of caution. The noble Lord, Lord Thomas of Gresford, said that admitting evidence of acquittal to court hearings would drive a coach and four through current provisions. That was echoed by the noble Lord, Lord Carlile of Berriew, and others. I should remind the House that, in the case of R v Z, which is part of our jurisprudence, it is already permissible.
It is already the case that evidence relating to charges for which the defendant has been acquitted can be admitted into evidence. That follows the ruling made by the House of Lords in the case of R v Z in 2000. Our proposals preserve the effect of that judgment. It will therefore be possible to admit evidence from previous cases if it is relevant to the current charge, even if the defendant had been acquitted in the previous proceedings. The evidence might be relevant, for example, to lend weight to the victim's account in the current case or to give the lie to the defendant's explanation. However, the court will be able to exclude such evidence if its prejudicial effect outweighs its probative value.
I apologise to the noble Baroness for intervening so early in her response. Perhaps she could clarify something about the recent House of Lords decision on acquittals. In Clause 90(1), the expression "tends to show", under subsection (1)(a), relates to the phrase,
"he has committed an offence".
I assume that it would be improper, or not intended by the Government, under Clause 90(1)(a), that an acquittal be adduced in evidence; it would apply only to Clause 90(1)(b).
The noble Lord is right, but it is important that we start with that point. It is clear that there seems to be an imprecise understanding of what our current jurisprudence actually holds. It is important for us to have clarity in relation to these matters because it is possible to become unnecessarily excited. I am sure that there is sufficient to become excited about, but we should restrain ourselves to those matters which deserve it.
This is an extremely important part of the Bill; namely, the new statutory rules for the admission of evidence of bad character. Therefore, I do not detract from anything said by the noble Lord, Lord Carlile, the noble and learned Lord, Lord Mayhew, or others in that regard. At this stage, we are concerned with the ambit of the new rules; that is, what evidence should have its admissibility determined under this scheme?
One of the aims of this part of the Bill is to achieve a degree of clarity and certainty in an extremely complex area of law. We therefore wish to establish a clear scope to the scheme. Clause 90 sets out what evidence is covered by the new rules by providing a statutory definition of evidence of bad character. All Members of the Committee who have spoken will know well that currently there is no statutory definition of "bad character".
Amendment No. 138, standing in the names of the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Anelay of St Johns, and Amendment No. 139, standing in their names and that of the noble Lord, Lord Dholakia, both seek to restrict this definition. The combined effect of those two amendments would be to limit the definition of bad character evidence so that the evidence must show that the defendant has committed an offence. Essentially, that would mean evidence of previous convictions.
It might be helpful if I deal with the general issue of why we consider it important to have a wide definition relevant to both amendments, and then with the particular issues raised by Amendment No. 138. I think it was the noble Lord, Lord Renton, who mentioned the wide definition, but it was echoed by a number of other Members of the Committee.
Current law already recognises that evidence going beyond previous convictions should be capable of admission in appropriate circumstances. We wish to ensure that that can continue to be the position. It would be a grave mistake to limit the law in the way suggested—a point to which I shall turn shortly.
I should however emphasise that the definition of bad character in Clause 90 sets out only what evidence is covered by the scheme; it does not make this evidence admissible. Admissibility is determined by Clause 92, in the case of non-defendants, and Clause 93, for defendants. The sole purpose of Clause 90 is to define "bad character"—the details of which I am sure we shall discuss in due course, and which I can anticipate. It does not impinge on whether that bad character will be admissible in evidence. Clauses 92 and 93 set out clearly the circumstances where this evidence can be adduced and appropriate safeguards. Therefore, a wide definition is desirable. Evidence that is caught by the definition can be admitted only where it meets the requirements laid out in the remainder of the scheme.
In particular, we do not wish to suggest, by narrowing the definition, that such evidence falls outside statutory rules. It is important to recognise that such evidence, while capable of being highly probative and therefore properly admissible in appropriate circumstances, might also be very prejudicial. It is therefore important that particular rules should apply to its admissibility.
On that, it is important to remember that the new statutory scheme is intended to deal comprehensively with evidence of bad character. To that end, Clause 91 abolishes the current common law rules in this area, and current statutory provisions are also repealed. So we are starting from scratch. As a result, the common law rule which excludes the admission of evidence of misconduct is swept away, as well as the current exceptions to that prohibition, such as the similar fact rule. I note that Her Majesty's loyal Opposition has not put its name to amendments which would retain the current law. Members of the Committee will know that there has been a great deal of debate about lack of precision and that we now need this comprehensive overhaul of the system.
In the absence of particular rules to regulate the admission of this potentially prejudicial evidence, it is essential that it is covered by the scheme. By drawing the definition widely, we ensure that it is admitted only when appropriate and subject to the safeguards that apply under the scheme.
We shall deal with the precise nature of Clauses 92 and 93, but their whole purpose is to constrain Clause 90. The way in which it is drafted makes that clear. Clause 90 gives a definition of "bad character". Clause 91 abolishes the common law rules which currently restrain the admissibility of bad character. Clause 92 gives the basis upon which bad character evidence will be admitted in the case of a non-defendant. Clause 93 gives the basis on which bad character for defendants will be admissible. If it falls outside Clauses 92 and 93, it will not be admissible. We believe that that makes it clear.
I am sorry; no doubt, I am being obtuse. My noble friend has not replied to my criticism. Clauses 92 and 93 are all important in defining the non-defendant's bad character and the defendant's bad character. Would it not be an improvement—that is why I intervened before—if the noble Baroness were to refer in Clause 90 to those particular provisions?
I am more than happy to consider that suggestion, but perhaps I may invite my noble friend to turn to Clause 92(1). A definition of "bad character" is given in Clause 90, and if we look further to Clause 92(1) it states that:
"In criminal proceedings evidence of the bad character"— to which we have already referred as defined in Clause 90—
"of a person other than the defendant is admissible if and only if".
The circumstances are then set out, in accordance with the normal precision of drafting.
Turning to Clause 93(1) on page 62, something very similar is set out:
"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if".
The basis on which evidence of that bad character may be admissible is thus made clear. So I hope that my noble friend will agree that the way the legislation is drafted is how he would wish it.
I see that the noble and learned Lord, Lord Mayhew, is anxious to intervene. I shall give way.
I am grateful to the noble Baroness. All that she has said is helpful, but as yet not quite helpful enough. She has explained that Clauses 92 and 93 set out the rules respectively for the admissibility of a non-defendant's bad character and a defendant's bad character. However, she has not yet addressed our criticism of what the Act defines as "bad character". Our criticism is that, while I hesitate to use the word "absurdly", the Bill is grotesquely tentative and vague.
The point has been made. It is not enough to say that it is important to have a scheme; of course it is. It is not enough to point out the rules set out under Clauses 92 and 93 unless the complaint of what is defined as "bad character" is addressed. That is what we hope to hear.
Pursuant to the point made by the noble and learned Lord, Lord Mayhew of Twysden, can the noble Baroness explain why it is necessary at all to include a definition of "bad character" in the Bill? Surely the question asked by the court is this: is character relevant? Does it matter if it is bad character or good character? Surely the clauses should contain provisions that set out when "character" is relevant.
I have a strong suspicion that the inclusion of "bad character" as defined is more a response to media pressure than to anything else. I also strongly suspect that if the Government continue to try to define "bad character" they will run into the problem governments always encounter when they try to define abstract qualities.
I believe that I have answered the question, but I am more than happy to clarify the position. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Carlile, have asked why this is drawn so widely. We are doing so because we have to catch as much evidence as we can which could then be made subject to the provisions of Clauses 92 and 93. If we were to draw this in a more narrow fashion, much of the evidence on which dispute before the court is likely to arise as regards whether the prejudicial value is more weighty than the probative quality may not be caught within the scheme.
The whole point is that we are getting rid of the old common law rules and, therefore, the break that they provide will not be in place. We need to cast the net in relation to bad character very wide indeed so that the rules that limit the admissibility of such bad character apply to the biggest possible catchment, as it were, of evidence. We need the wide definition. That is the purpose here.
I had assumed that the intention of the amendment and, for that matter, Amendment No. 139, which we shall discuss more fully, is to restrict the kind of bad character evidence that can be admitted. I have just outlined why we think that that would be highly undesirable. While evidence of previous convictions may well be the kind of evidence that is most likely to be adduced, it is important to recognise, as does the current law, that evidence going wider than previous convictions can have probative value and that, in appropriate circumstances, this evidence should be capable of being admitted.
I should therefore like to turn to the kind of evidence that is covered by the reference to evidence that "tends to show" that a person has committed an offence or acted in a particular way. This is the issue raised by, among other noble Lords, the right reverend Prelate the Bishop of Worcester. This part of the definition would be removed by Amendment No. 138. The mischief that it seeks to address is that, in particular in the case of criminal conduct, if a person has not been convicted of an offence, it might be difficult to say that evidence relating to that charge shows that he has committed an offence; yet the evidence might be highly relevant.
Examples of where it might be appropriate to admit such evidence include circumstances where evidence on a number of charges being tried concurrently is cross-admissible in respect of the other charges. It might also be appropriate to admit evidence relating to charges on which the defendant was acquitted, as I have already cited in the example of R v Z. It would be unfortunate if an argument were to be accepted that, because a person has not actually been convicted of the offence, it cannot be said that the evidence shows that he has indeed committed such an offence and it is therefore excluded.
That would represent a severe restriction on what is currently admissible. Evidence of the kind described can be admitted under the common law rules and, indeed, many of the landmark cases in the development of the "similar fact" rule involve evidence of this kind. I am sure that those noble Lords with experience of the criminal law will know very well the cases of Boardman in 1974, DPP v P in 1991 and R v H in 1995. Those are all examples of important cases in the development of the common law similar fact rule and all involve admission of evidence other than previous convictions. Those three cases were all concerned—
With respect to the noble Baroness and deferring to the presence of the noble and learned Lord, Lord Mackay of Clashfern, how on earth can she cite DPP v P in support of Clause 90(1)(b)? DPP v P does not offer the remotest justification for this kind of provision. No doubt I shall be subject to harsh correction if I get this wrong, but DPP v P provides for evidence to be admitted if it is probative; that is, relevant and probative, not of the bad character of the accused, but of the offences with which he has been charged: the index offences. That is a million miles from the citation that the noble Baroness is trying to make.
I support entirely what has just been said by the noble Lord, Lord Carlile. The same applies to the case of R v Z, referred to by the noble Baroness. That case is referred to in the Explanatory Notes and I have taken the opportunity to look at it. It really has nothing to say in support of a wide definition. R v Z was a case where the argument concerned double jeopardy; that is, whether the previous acquittal meant that the person could not be tried again. The evidence was admissible on ordinary similar fact evidence grounds as established in DPP v P and in subsequent cases with which I know the noble Baroness is familiar.
I have sought to respond to the questions raised about the species of evidence which goes beyond the proof of conviction. A number of noble Lords have pointed out that we can understand the admissibility of conviction, but not other evidence which goes more widely and "tends to show".
My whole point here is that if one looks at DPP v P, Boardman and R v Z, they go beyond mere conviction and are included in additional information which the court deemed it proper to admit into evidence. They would fall into the category of material which tended to show—as similar fact evidence tends to show—but is not evidence of an actual offence. The noble Lord will know the case of Boardman particularly well for that reason. That was the whole point of adducing the similar fact evidence. It was not that the person had been convicted and found guilty of previous offences, but the similar fact evidence from those earlier issues was important to verify guilt.
I am not talking about the definition; I am dealing quite clearly with the argument that species of evidence that fall outside convictions should be excluded. So if you exclude the words "tends to show" and you abolish under Clause 91 the previous rules under the common law, you are left with issues such as similar fact which would otherwise be excluded.
I know perfectly well that is not what the noble and learned Lords, Lord Lloyd and Lord Mayhew, intend. Indeed, I know that even the noble Lord, Lord Carlile, who sits on the Liberal Democrat Benches, would not wish to see that. I am seeking to explain why the regime of "tends to show" is cast more widely than the simple stricture of having to prove a conviction and no more. That is why these cases are important. I see the noble and learned Lord, Lord Lloyd, nodding in understanding if not in agreement.
In sympathy? I shall take it as agreement. I shall take what I can get.
As noble Lords will know, the three cases I have cited were all concerned with multiple allegations where the evidence of one complainant was held to be admissible in respect of other charges. Indeed, the first major attempt at laying down similar fact principles was the case of Makin as far back as 1894. That case also involved evidence of bad character other than previous convictions. It involved a charge of the murder of a baby and evidence that the bodies of 13 other babies had been found buried in the garden of the defendant's house and previous properties was admitted to rebut a defence of accidental death.
This strand of the definition also covers evidence relating to charges on which the defendant has been acquitted. I have already mentioned the case of R v Z. If Amendment No. 138 were to be accepted, it would remove from the definition much valuable evidence that is already recognised as being admissible under the current law. Such evidence should be covered by the scheme and it is important that the definition should ensure that that is the case.
I hope that that explanation of this part of the clause has reassured noble Lords that the amendment can be withdrawn. I look forward with joy to the debate on Clauses 92 and 93.
As I understand the noble Baroness, she is saying that the words "tends to show" are the statutory means of dealing with similar fact evidence. I have not understood that. It is a very interesting concept. I suggest that the Minister goes away and considers whether, if similar fact evidence is to be given a statutory form, it should appear specifically in the Bill so that we know what we are talking about. I had thought that,
"tends to show that [a person] . . . is disposed to behave, in a way that . . . might be viewed with disapproval by a reasonable person", could cover someone who went clubbing at night and stayed in bed until one o'clock the following day. But if it is supposed to be similar fact evidence, let us have it.
I put this point to my noble friend the Minister with great humility because it breaks a self-denying ordinance that I have imposed upon myself. Although I am a lawyer I am not mainly experienced in criminal law, and with such august authorities in the Committee it is perhaps intemperate of me to put even a small point.
I have no similar experience of the criminal law but I have a great deal of experience of what people say, which tends to show that I am disposed to behave in a manner which might be viewed with disapproval by what they call "reasonable persons". In fact, I have spent quite a large part of my life showing to those who claim to be reasonable persons within that formula that their view could perhaps be challenged.
I have not gone clubbing to the hours referred to by the noble Lord, or usually stayed in bed, but I have equivalent experiences, with which I shall not bore my noble friend on the Front Bench. Does she realise that this is not about going beyond convictions? I have listened very carefully—I do not think we are discussing Amendment No. 139—and this is about entering new territory where, without bothering to read all the words, "tends to show" is really quite extravagant.
I do not believe that it is. I make no comment on my noble friend's behaviour—perish the thought—but he can be reassured that even if he did have a character which tended to show to a reasonable person what we have just outlined, it would be admissible in evidence only if it fell within Clause 92, if he was a witness in a case, or Clause 93 if he was a defendant. So my noble friend would have the security of knowing that the limitations in Clauses 92 and 93 in respect of any of that information or evidence would bite.
Perhaps the noble Baroness can ease my mind on the point of the phrase "tends to show". Does it seek to express the common law as regards similar facts as it is now, or does it extend it?
It seeks to encapsulate the common law as it currently stands and also to extend it in a way that gives greater clarity and modernises and updates the position. For example, it is right that much of what is in Clause 93 is already reflected in some detail in the jurisprudence, the case law, with which we have had to deal for many years.
Noble Lords—particularly those who have the wonderful pleasure of mastering Archbold—will know that the section on bad character is quite extensive and that the case law is quite complex. Practitioners should be forgiven for not knowing each and every nuance of it. For example, there are many who are not familiar with R v Z, of which we have had perhaps a mild demonstration today.
I find that in this—dare I say it?—distastefully populist Bill there are many poisoned chalices. Chapter 11 contains pure strychnine. I have every sympathy with the Minister. She said in the course of her response to my amendment that clarity and certainty were crucial in this complex area of the law. If that is so, I am bound to say that the Government have got off to a very bad start in Clause 90.
I gather that the Minister is not inclined to accept the generous offer of the noble Lord, Lord Clinton, to go away and reconsider.
This, of course, is Committee, and I hope to be able to explain the Government's scheme fully and comprehensively to noble Lords so there can be a better understanding about it. Of course I will listen very carefully to everything that is said, and we will reflect upon it before the Bill comes back on Report. That is in relation to each and every clause. If the noble Lord is asking whether we will specifically resile from any of it, I, like noble Lords, will have to listen to all the debate and give it some mature consideration, but I can certainly give the noble Lord no promise.
I am most grateful to the noble Baroness. Relating that to the contents of her response to what noble Lords have said, I feel compelled to test the opinion of the Committee.
As it turned out, much of the debate with respect to Amendment No. 139 has already taken place. Could I expedite matters by asking the Minister whether she would be prepared, in the light of the previous vote, to undertake to reconsider the wording of Clause 90(1)(b) and to return with a much more specific expression that would cover the circumstances in which bad character could be evidence in the Bill and, therefore, subject to the rules on admissibility? I beg to move.
We shall of course consider the consequences of the previous vote. The point of casting the net wide on subsection (1)(b) was so that as much as possible could be caught and bound by Clauses 92 and 93. We did not wish it to be argued, particularly if were moved Clause 91, that proof of bad character was outside the statutory scheme, therefore outside Clauses 92 and 93, so that the restrictions placed on admissibility did not catch that evidence. That would mean that the balance that the court would have to strike to ascertain its probative value would somehow be avoided.
Of course, as is always the case, we shall go away and consider our position. However, the whole purpose of casting the net so wide was so that we would catch as much as possible, so that the process would be subject to the constraint and restraint that we seek to impose in Clauses 92 and 93.
The noble Baroness has referred to the restraints in Clauses 92 and 93. Clause 92 refers to the non-defendant's bad character while Clause 93, which is the more important one, refers to the defendant's bad character. The difficulty is that Clause 93 contains very few constraints on the ability of the prosecution to put bad character in evidence. In Clause 93(1)(a) to (h), five of those eight sub-categories go in automatically. Only three are subject to the discretion of the judge, and then only if the defence applies and invites the judge to exercise that discretion. That is a world away from the existing situation.
The reason, therefore, why the definition of bad character is so important in Clause 90 is because the protection for the defendant in Clause 93 has become so weak—as a result of the way in which the Government, themselves, have drafted the Bill. Therefore, I must ask the Minister for a clear and specific undertaking on Clause 90(1)(b) if I am to avoid asking again for the opinion of the Committee. Could the Minister say, very telegraphically, whether she is prepared to give me that undertaking? If she is not prepared to give me that undertaking, I shall ask for the opinion of the Committee.
It is a great advantage to have my noble friend with us again, not only because he is always bright and lucid but because on this matter he has emphatically pointed out how useless the expression is that he wants left out. Can Members of the Committee imagine, when deciding on criminal responsibility, using the expression, "disposed to behave"? What can it mean? It can only be very vague. And how are we to interpret,
"might be viewed with disapproval by a reasonable person"?
It could be said,
"even by a reasonable person".
Those sorts of expression must not be allowed to remain in the Bill.
The only undertaking that I can give is that we shall, of course, look at the matter. I do not know whether the noble Lord, Lord Kingsland, wishes to hear anything more from me. I note what he says in relation to Clause 93, but invite his attention to subsections (3) and (4). Subsection (3) states:
"The court must not admit evidence under subsection (1)(d),(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
Subsection (4) states:
"On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged".
There is the protection to which I referred. I can say only to noble Lord who speaks for the Opposition from the Dispatch Box that we shall, of course, consider these issues between now and Report stage. It would be open to the noble Lord to divide the House on Report if he felt that we could not assist him or take the matter further. I cannot give him any further undertaking than that.
I merely make the point that I made before—that this appears to be an attempt to bring a similar fact evidence rule into the provisions. It simply does not work, and it has got to go. If the noble Lord chooses to vote, we shall be with him.
This is designed to be the coup de grace before we have an intake of a little refreshment.
We have perhaps overlooked, because it seems such a long time ago, the Second Reading. The noble and learned Lord the Lord Chief Justice took the unusual step, so that it would not be said that he had detained the House too long, of placing in the Library of the House a memorandum which represented not only his views but the views of all the High Court judges and the views of the Court of Appeal Criminal Division. Therefore, the material which is to be found there is, I think, the shortest way of my dealing with this. It is to be found on page 4 of the memorandum, headed "Evidence of Bad Character, Part II, Chapter 1". Paragraph 12 states:
"This part abolishes the common law rules and introduces new rules which require greater disclosure of evidence of bad character in the course of proceedings than would have been required hitherto"—
For the convenience of the Committee, perhaps the noble and learned Lord could indicate to which clause he is speaking. As I understand it, we are still on Clause 90.
I do apologise. I shall take as read what I said, in the hope that Hansard will put it in. I had reached paragraph 13, which is where the meat begins. It states:
"The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant.
The definition has two limbs. First, evidence that the person 'has committed an offence'. There is no difficulty here. However, it is then provided that evidence 'which shows or intends to show that . . . 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' is also evidence of bad character. This latter test of bad character is far more uncertain than it should be and is likely to give rise to a prolonged argument during a trial as to whether particular conduct falls within it. Furthermore it is likely to lead to appeals (see clause 90).
An example of the sort of complications that are likely to arise as a consequence of chapter 1 is provided by clause 96. That clause is designed to introduce into a trial an issue as to whether a defendant has a propensity to commit an offence or a propensity to be untruthful and then allow evidence of bad character to be given. This evidence of propensity is particularly dangerous. A trial should relate to whether an accused has committed an offence or is untruthful and not questions as to whether the defendant has a propensity. Again the judiciary consider this provision is likely to complicate proceedings and prolong trials without any benefit. (It is appreciated that evidence as to a propensity to be untruthful is limited by clause 97.)
Another curiosity relates to the provisions as to the defendant's bad character. The judge is allowed to exclude evidence of bad character if it would have 'such an adverse effect on the fairness of the proceedings that the court ought not to admit it', but this discretion does not apply to all the situations where evidence of bad character can be admitted. In addition, the clause addresses when the judge is to exclude the evidence. It would be preferable if this clause and many similar clauses gave the judge a discretion to admit such controversial evidence and not to exclude it. (clause 93(3)).
The situations not included are set out in subclauses (c), (f) and (g). Sub-clause (c) refers to 'important explanatory evidence'. Sub-clause (f) relates to evidence that has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Sub-clause (g) is evidence to correct a false impression given by the defendant. What is not clear is whether the general discretion of a judge to exclude evidence because its prejudicial value exceeds its probative value is excluded. If it is intended to be excluded, then it certainly should not be".
Those were the views of the senior judiciary, a High Court judge and the Court of Appeal Criminal Division. It is a clear indication that the clause is not one that should be allowed to exist. Although this matter will end inevitably in a Division, Divisions are unnecessary because the whole clause should be swept aside.
I warmly support what the noble and learned Lord has said. I hardly need to remind your Lordships that for generations—not by statute but under the common law—it has been against the rules of our courts to admit evidence of bad character in proof of a fresh offence. Criminal cases in our system have over the years avoided injustice to a remarkable extent. But if we simply let in evidence of bad character and there is a bit of doubt about the case which the prosecution has put forward, is there not then a danger that the jury may well say, "Yes, well, the prosecution case was not very good but this man is no good; he has been convicted before. Let us convict him"? That would be terrible injustice. That is why I support the noble and learned Lord.
I, too, support the opposition to Clause 91 of my noble and learned friend Lord Ackner. On another controversial issue—that pertaining to jury trial—I have unsuccessfully, and against fearful odds, supported the Bill in principle. But so far I have not been reconciled to the excessively complex provisions of this chapter. To me they are redolent of a drawing board in a government office rather than the flesh and blood reality of a criminal trial.
The existing common law of England and Wales as to the admissibility of similar fact evidence was liberalised in England by the Appellate Committee of your Lordships' House in the 1991 case already referred to this evening—Director of Public Prosecutions v P—in a speech delivered by the Lord Chancellor as he then was, the noble and learned Lord, Lord Mackay of Clashfern, whom it is a delight to see present tonight.
Previously it had been understood that the test for admissibility was whether the evidence showed conduct by the defendant strikingly similar to the conduct now charged. The noble and learned Lord, Lord Mackay, held that the striking similarity test was too narrow. The question is always whether the evidence has sufficient probative force on the present charge to justify its admission, notwithstanding that it prejudices the accused by showing that he is not of good character. Mere propensity is not enough. There must be relevance and probative value such that to deny the jury the full picture would be an affront to common sense.
In the course of his speech, the noble and learned Lord recognised that the law of New Zealand had already undergone a similar development, citing certain New Zealand cases. Since P, English and New Zealand law have marched hand in hand on the subject. The sufficient probative value test prevails and is calculated to do justice. Being a question of degree, it is uncertain in the sense that it requires a judge to exercise judgment on the facts of particular cases. However, the law is necessarily full of grey areas where such judgments are essential. Judges are appointed to judge, not to apply automatically inexorable formulae. By comparison with tests suggested in the Bill, the evolved common law is at least more certain, simpler and fairer.
I shall briefly make that good by referring to two key provisions in the Bill. Clause 93(3) states that the court must not admit certain evidence if,
"on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
Apparently, "some adverse effect" on fairness would not be enough. "Such" seems to require something blatantly unfair. Be that curiosity as it may, in posing a test concerning unfairness in a particular case, the provision would require a discretionary judgment, wider if anything than the probative value test.
Clause 96(1)(a), on whether certain evidence is admissible, includes within the qualifying matters,
"the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".
That provision does not specify who is to adjudicate when admissibility has to be decided on the "no more likely" question. Obviously at that stage, it could only be the judge. It also seems obvious that that will present for the courts questions of degree subtly different from the question posed by the case of P—questions novel, difficult and contentious.
In the light of such intricacies—I have given but two examples—the Bill will be improved if the chapter is simply omitted. It was dismaying to hear the noble Baroness, Lady Scotland, say that it was an extremely important part of the Bill.
I should like to oppose the Question that Clause 91 stand part of the Bill. I do so because I have an uneasy feeling that it is somewhere near both the heart of the matter with which the Bill is an attempt to deal and the flaws that, frankly, I think are in it.
I dare to say from these Benches that I have the sense that the wisdom of the common law arises from a fundamental Christian conviction about the use of inductive logic in relation to human beings. That is to say that it is possible to make inductive statements of a scientific sort about all sorts of issues, but that human beings have to be considered in a rather different way. It is extremely worrying, but we all know that we have within ourselves a tendency to make inductive judgments about human beings—"That's the sort of person who might well have done such-and-such"—on grounds that have subsequently proved extremely prejudiced.
Therefore, in thinking about the clause, we ought to be very aware of the doctrinal history that lies underneath our common law and our practice. We must be very careful that we do not give validation to ways of thinking about human beings to which we are all prone but which, in our human wisdom, we have thought inappropriate to make deciding factors when it comes to people's liberty.
I, too, support the views expressed. I want to remind the Committee that when we discussed juries the noble Lord, Lord Mishcon, told a wonderful story about how he as a young lawyer was sitting in Bow Street magistrates' court when someone was brought in and tried. The basis on which the magistrate reached his conclusion that the man was guilty was that he was clearly a tramp. The accusation was that he had sidled up to someone and taken his wallet. What came to light afterwards was that the man had gone back to his house and found his wallet in the pocket of a suit, and that it had not been stolen at all. However, the magistrate expressed the view at the time that the tramp was exactly the kind of person that he suspected would be up to such an activity.
The problem is that even judges and magistrates, never mind juries, can be very easily misled into thinking that someone is the kind of person who might commit a particular sort of offence. I had the opportunity of discussing that with some judges from South Africa recently. They reminded me that, even under apartheid when judges alone and not juries tried cases, they made a very clear rule and stuck to it that people's previous convictions would not be put before the judges. They knew how strongly that could act against the interests of those on trial.
Like others, I feel very strongly that the clause may be one of the most offensive parts of the Bill, and I ask that the Government think again.
It is with great temerity that I, a layman, speak in the debate, but I do so because I did jury service a year ago. We have to be careful about thinking of juries as a bunch of people who can be easily influenced and have the wool pulled over their eyes.
I have great respect for juries as a result of my service, because everyone took their duties very seriously. Yes, in the jury room there was the usual split of two for hanging, two for acquitting, and eight undecided who then went one way or the other and the matter was dealt with. However, we wanted more information, because huge arguments went on in court without us present about what we were and were not to be allowed to hear. It was very frustrating, because it was as if we were idiots, and we were not.
The perfectly sensible people on juries are quite capable of filtering information and are probably less cynical than the judge and magistrates. They might have a more realistic view of who and what can be trusted. We are perhaps getting too frightened of putting too much control into place.
My second point is that if we are going to replace common law, which is a body of wisdom that has built up, by a rule-based system, that would be difficult and dangerous. One can draw those rules so tight that suddenly a lot of evidence cannot be presented in front of a jury. I would prefer to see a system which is more widely drawn. That is why I supported the Government on the previous two amendments.
Initially, we need a system that probably allows more evidence to be presented to juries. We will filter it down, as we did with common law, into something that is sensible later. If we have a rigid, rule-based system on day one which does not allow anything to be presented to juries, they will become even more frustrated. In one case where I sat as a juror, the judge became so fed up with us passing notes and asking questions that he had to tell us to stop and try the case on the evidence presented by two adversarial lawyers who I did not think were doing a very good job; and nor did the jury.
The debate on Clause 91 has covered almost every other clause in Part 11, except Clause 91, but your Lordships need not apologise because Clause 91, in its context, invites that kind of debate. It is important to distinguish the definition of bad character from the rules of admissibility that relate to its role in a trial. Although Clause 91 refers to the rules of admissibility, I understood the noble Baroness to be saying that it referred also to the definition.
We have discussed, so far, only the definition in Clause 90. As far as that is concerned, I am wholly in agreement with what each and every one of your Lordships has said in the debate. As far as issues of admissibility are concerned, I would prefer to wait until we discuss Clauses 92 and 93 to express an opinion.
I thank all those who have participated. We take very seriously the comments of the noble and learned Lords, Lord Ackner and Lord Cooke, not least because they have a wealth of experience, and I heard what the noble Lord, Lord Renton, said in support.
I shall explain why we think that the common-law rules should no longer remain. It goes to the root of the issue raised by the right reverend Prelate the Bishop of Worcester who said that the "inductive logic" does not apply in relation to human beings.
We are not seeking to set out a rigid structure which will not be amenable to jurisprudential development by the courts. We know from looking back at every other piece of statute that Parliament proposes, that, in the end, in terms of interpretation, the courts have the habit of disposing. This is not the end of the common law, but it is a removal of the common-law rules that have hitherto applied. Our intention is that a scheme should be introduced in the Bill that will provide a comprehensive statutory basis for the admission of bad-character evidence and replace the existing statutory and common-law provision in that area. We have already touched on some of the complexities which that marriage has brought about, some of them not always happy in union.
It has been widely accepted that the current law is confusing and difficult to apply and that there is a clear case for reform. At present, the law relating to the admissibility of a defendant's previous misconduct or criminal disposition is contained in a variety of common-law rules and statutory provisions, added to and adapted in a piecemeal fashion over a number of years. That haphazard and fragmentary approach has left the law as a highly complicated set of rules.
The Law Commission in its report, Evidence Of Bad Character In Criminal Proceedings, concluded that:
"The present law suffers from a number of defects . . . they constitute a haphazard mixture of statute and common-law rules which provide inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the factfinders whilst often exposing witnesses to gratuitous and humiliating exposure of long-forgotten misconduct".
Noble Lords will find that quote in the Law Commission's report, Law Com No. 273, at paragraph 1.7. When Lord Justice Auld looked at the criminal courts in his review, he noted that,
"it has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty".
One needs to refer only to the relevant chapters in criminal evidence textbooks, such as Archbold or Blackstones, to see the volume of case law to which this difficult area of the law has given rise in the courts, and the convoluted rules that have been produced as a result.
The fundamental issues are still being debated and we will debate them under Clauses 92 and 93. We are not expunging the common law of England and Wales. We are removing the common-law rules, which refer to bad character, and replacing them with a statutory framework that will be applied and will in due course come to be looked at—
The Minister referred to the Law Commission and spoke about setting up a statutory structure. Will she explain why she has not followed the Law Commission in important respects? For example, the Law Commission set out proposals that evidence of bad character, whether it be of the defendant or some other person, should be admissible only if the court gives leave for it to be adduced. The Law Commission also concluded that evidence of bad character should be admitted only in such circumstances when it is in the interests of justice for it to be admitted, taking into account its prejudicial effect. In significant ways, which no doubt will be expanded upon in later debates, the Government have moved away from the Law Commission and it is rich that the noble Baroness chooses to quote the commission in support of the proposals.
I hear what the noble Lord said about it being rich; it is also right. We have introduced and applied many of the Law Commission's recommendations. Your Lordships will know that the drafting, for example, of Clause 93(3) is drawn from Section 78 of PACE. That drafting has already been considered and interpreted to include the tests in the common law, under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in that way and so as to be clear.
To take up the point of the noble and learned Lord, Lord Cooke, the court will come to look at those issues. It will be the judge who has to determine what the probative value of any evidence will be when an application is made to that judge. Clause 93(3) is in place. The noble and learned Lord will know, as other noble Lords appreciate, that courts throughout the country are asked every day to make just such judgments as to which pieces of evidence should be admitted and which pieces should not. We do not seek to change the ordinary functioning of the judicial process, but clarity can be—
I apologise to the noble Baroness for interrupting her. I rise in support of the noble Lord, Lord Thomas, and his observations about the Law Commission. It is true, of course, that the Government have followed the Law Commission in certain respects. But in other respects the Government have chosen to ignore what the Law Commission said—most importantly, in relation to Clause 93 and the way in which the bad character evidence can be admitted. I say with great respect to the noble Baroness that, far from echoing the Law Commission, the Government have reversed the way that the Law Commission believes these issues should be dealt with, at least so far as concerns matters of admissibility.
Of course, this is a matter for debate under Clause 93. I do not want to anticipate that debate by getting into the detail; but I hope that the noble Baroness recognises that, so far as concerns Clause 93, the Government and the Law Commission are a long way apart.
I hear what the noble Lord says. He is right: we shall have an opportunity to debate both Clause 92 and Clause 93. I anticipate that, if the earlier debates foreshadow the latter, we shall debate those for quite some time.
The scheme introduced in this part of the Bill sets out clearly the circumstances in which the evidence of bad character can be given. The Bill will therefore provide greater certainty and clarity to the law and encourage the admission of such evidence where it will properly assist the courts. I believe that we need to take on board very powerfully what was said about the need for juries to have proper information available to them so that they can make an informed judgment. We believe that the Bill will do that.
I am sure that noble Lords will have different views on the circumstances in which this type of evidence should be admissible and, as I said earlier, I look forward to that debate. But while the circumstances in which evidence of bad character is admissible under the current law have informed our proposals, the scheme introduced by the Bill is intended to create a new statutory regime.
Clearly, to enable the scheme to be the authoritative statement of the law in this area, it is necessary to abolish the current common law governing the admissibility of such evidence. Therefore, Clause 91 abolishes the common law rules—not the common law but the common law rules—governing the admissibility of bad character evidence. That will include the abolition of the general exclusionary rule prohibiting the use of evidence of a defendant's previous misconduct or other disposition, as well as the rules providing exceptions to this principle, such as the "similar fact" doctrine.
Obviously, not only the common law but also statute deals with the admission of bad character evidence—in particular, Section 1(2) of the Criminal Evidence Act 1898, which governs the cross-examination of the defendant on his bad character. These, too, need to be repealed in order to complete the process of putting the law on a new footing, and that is dealt with in Part 4 of Schedule 31. I hope that both the noble Lords, Lord Thomas of Gresford and Lord Kingsland, will agree that the Law Commission believes that such a replacement of the rules was merited and well founded. That is all that Clause 91 seeks to do.
Your Lordships have been most patient and must, by now, be very hungry. I wish to say only that nothing in my proposal in any way suggests that there should not be amendments. Clearly much needs to be done, but this is not the way to do it—hence, my Question. I should like to test the views of the House accordingly.
My Lords, I beg to move that the House do now resume. In moving that Motion I suggest that the Committee begin again not before four minutes past nine.