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.—(Baroness Scotland of Asthal.)
We have already expressed our view about the importance of including a requirement of relevance in Clause 93. We have also expressed our support for a general rule excluding bad character evidence, subject of course to exceptions, rather than a general inclusionary rule, as favoured by the Government, subject to a discretion to exclude. Therefore, I shall not return to those topics in my remarks in support of Amendments Nos. 144 and 145.
On Amendment No. 144, which states,
"nor if the potential probative value of such evidence is so outweighed by its prejudicial effect",
I need do no more than remind the Minister of her speech in your Lordships' House, last Monday in Committee, at col. 752 of Hansard:
"As I said earlier, that drafting of Clause 93(3) is drawn directly from Section 78 of PACE. The drafting has already been considered and interpreted to include the test 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 this way and will be clear, rather than adopting a new form of words which may cause confusion".—[Official Report, 15/6/03; col. 752.]
If that is so, can I take it that the Minister is quite content with the terms of Amendment No. 144? There could be no harm, but positive benefit, in including it in the Bill if that is the jurisprudence which has already been developed by the courts.
Amendment No. 145 would define the expressions "probative value" and "prejudicial effect". It is clearly set out in the Marshalled List. In the interests of brevity, I do not feel it necessary to express any further views about each item in that amendment at this stage. I beg to move.
I shall adopt the noble Lord's telegraphic style and say in answer to him on Amendment No. 144 that less is more. Our position is expressly set out. The statement to which the noble Lord referred set out the Government's position, and it was clearly expressed. We stand by that as our proper interpretation. Further amendment to the drafting of the Bill is therefore not necessary. The noble Lord will know that the comments that I have made, and, I hope, the clarity with which I have expressed our understanding, should be capable of being used for interpretative purposes, so as to avoid any difficulty arising on another occasion. Unless the noble Lord wishes me to elucidate further—I assure him that I have at least 20 minutes' worth of argument—I do not intend to respond further.
I have only one observation to make on what the noble Baroness has said. I entirely accept that the courts have implied in the relevant section or paragraph of PACE that the probative, prejudicial test applies. However, PACE serves a different function in our criminal law from the function that Clause 93 is intended to serve.
It is conceivable, therefore, that despite the interpretation of PACE in the way the Minister suggests, there might still be a danger that a court would take a different view about the same expression in the context of Clause 93, in particular, and the Bill in general. I, therefore, see no reason why the Minister, if she is so confident of the interpretation she expressed last Monday, should not be prepared to put the expression on the face of the Bill.
Perhaps I should add a few more words in the hope that that might satisfy the noble Lord. I shall try to reassure the Committee that the concerns behind the amendment are misplaced. That is because, as the noble Lord has demonstrated, there is little difference between us in terms of the substance. It is our intention that the test should consist of a balance between probative value and prejudicial effect and it may help if I make this point absolutely clear.
The test for the court to apply under Clause 93(3) as it stands is designed to reflect the existing position under the common law, as Section 78 of the Police and Criminal Evidence Act 1984 does, under which the judge balances the probative value of the evidence against the prejudicial effect of admitting it and excludes the evidence where the prejudice exceeds the probative value.
The Government's intention is for the courts to apply the fairness test in this legislation in the same way and this is the intended effect of the clause. In applying the test to evidence admissible under Clause 93(1)(d), the court will balance the probative value of the convictions—that is, the extent to which they are relevant to the issues in the case—against any prejudicial effect of admitting them.
The question therefore is one of drafting. The current wording draws on that adopted in Section 78 of the Police and Criminal Evidence Act 1984 and is therefore a statutory formulation with which the courts are already familiar. Case law has clearly established that that section encompasses the common law power to exclude evidence whose probative value is outweighed by its prejudicial effect. We consider it desirable to have on the face of the legislation a familiar test that achieves our intention, rather than introducing new language.
On the other hand, the amendment would introduce a new statutory formulation. This would, no doubt, give rise to lengthy arguments as to what exactly the test is intended to be. Both the noble Lord and I know of the ingenuity of the Bar of England and Wales, and the delight which many have in testing and teasing out these differences.
To give one example, the wording of the amendment states that,
"the potential probative value of such evidence is so outweighed by its prejudicial effect" that it ought not to be admitted. The words "so outweighed" would doubtless prompt a great deal of case law and uncertainty as to its meaning. Does it mean that the prejudicial effect simply outweighs the probative value? Or must it outweigh it to a certain degree? If so, by what degree is it acceptable for the prejudicial effect to outweigh the probative value before it is excluded? Such debates would be highly undesirable and we believe it is far better to pursue a well-established and well-understood test.
I hope that that explanation will suffice. If the noble Lord wishes me to go even further, I am happy to do so.
The Minister implied that the test was to be as it is at present, but is that what is achieved by Clause 93? She will remember the remarks made by the noble and learned Lord, Lord Cooke, when we previously discussed the matter on the words "such an adverse effect". Do those words exist in the present test, or has the Minister, by Clause 93(3), changed the balance of proof?
In Clause 93(3), we have made it clear that:
"The court must not admit evidence under subsection (1)(d), (e) or (f) 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".
That is to preserve the ability of the court to weigh the difference between the probative and the prejudicial.
Clause 90 provides the definition of "bad character" in order to put these matters on to a statutory basis. Prior to the amendments that we discussed on the last occasion the Government intended to cast that net very wide indeed because we were removing the common law rules which would have constrained. For that purpose, we wanted all those issues to be subject to the new statutory scheme on an inclusive basis, and then leave the issue to the judge who would be charged with balancing the issues of fairness to make the determination.
We appreciate—which is why we see Clause 93(3)—that the probative nature of the evidence will be of importance when determining whether and to what extent the defendant's bad character should be admitted into evidence. It is right that the judge, in exercising his role almost as "manager" of the judicial process so as to make sure that there is a fairness and equality of arms, should have the opportunity in exercising discretion pursuant to Clause 93(3) to weigh the prejudicial and the probative, one against the other.
The noble Baroness has made a valiant attempt to justify the use of the expression "bad character". In Clause 93, we are talking about the defendant's bad character. Under present law as I have always understood it, and I have had a lot of experience of it, previous convictions were the only evidence of bad character that the prosecution could produce. There are many kinds of bad character, but they are indefinable. Chapter 1 and Part 11 of the Bill do not make a strong attempt to define "bad character".
Can the Minister help us on this issue? After all, it has an important effect on the meaning of Clause 93 and indeed of other clauses in the chapter.
On the previous occasion, we debated these issues in relation to Clause 90 at length. Indeed, we took some time together to look at the jurisprudence that currently exists and compare it to the various subsections of Clause 93, which are there enumerated.
It was suggested that issues of character are narrowly drawn, but perhaps I may invite the noble Lord to look at the debates we had on that occasion. We enjoyed a detailed discussion of the current jurisprudence, which showed the wider ambits that we now have. As I said, Clause 93(3) preserves the opportunity for the court to make that determination. I suppose that there is a change in emphasis because, in the past, the rules were designed to exclude evidence, except where there could be special conditions upon which it could be included. Now, the coin is the other way round. There is an ability to include evidence unless exclusion is merited.
However, whichever way the coin is turned, we say that one arrives mainly at the same place. The fairness of the proceedings will be the determining factor: the evidence should be admitted if its probative value outweighs its prejudicial effect and, conversely, it should be excluded if its prejudicial effect would outweigh its probative value.
The noble Baroness has just stated the existing law with perfect accuracy. However, it is not clear to me, and, if I may say so, it has become increasingly unclear as the debate has proceeded, what function Clause 93 is intended to serve. Is it intended to change the existing law or is it not? If the emphasis is still to be on the judge having a duty to weigh probative value against prejudicial effect, that is the existing law. One can talk about a change of emphasis, and so on, but ultimately, as the noble Baroness said, it will come to the same thing. It is not at all clear what purpose Clause 93—or, indeed, this whole chapter—will achieve. Why not leave it to the common law?
One difficulty is that there has been a great breadth of difference in the way these provisions have been interpreted. If one considers the argument that has ranged, on the one hand the Government have said, "We are changing the balance. It is a nuanced balance but, none the less, it is to encourage and enable the court to include evidence which should properly be included and put before the jury to determine". We have had an exclusionary approach in the past but we are changing that in terms of emphasis. However, we are retaining the core principle, which is necessary for fairness—namely, to balance the two. We are modernising the approach and bringing it together in one place.
Therefore, there is obviously opportunity to broaden the concept. But Clause 93 should be capable of bringing about greater clarity in relation to those rules. In its report, the Law Commission underscored very clearly that this was not only a very complex area but one which merited a new look and a statutory framework. One will see that theme running through its report. We have sought to bring about that statutory framework and to bring clarity in terms of how it should be operated.
Some say that there is a huge difference between the approach being inclusionary or exclusionary. We, the Government, do not say that that is so. We believe that it is an issue of emphasis, and we trust that the judiciary will be able to operate within the statutory framework in a way that will guarantee fairness and parity, as has been the case in the past.
I believe there is much to be said for the amendment as it seeks to introduce words with which we are all familiar. What I do not understand is whether the Minister is saying that it is unnecessary to introduce those words because they are included within subsection (3) by virtue of the meaning that has been given to them in the Police and Criminal Evidence Act.
In that case, why not say so expressly? I can find no reference to the Police and Criminal Evidence Act here.
I am so sorry. I beg your Lordships' pardon. I believe that I am over-tired and I almost forgot that I was standing up, which was a great discourtesy when the noble and learned Lord was standing. I beg his pardon.
As I have already said to the noble Lord, Lord Kingsland, the phraseology has been accepted as good law and it is well understood and well used. We are replicating that. I hear a noble Lord asking from a sedentary position, "Why change it?" I ask the same question of the noble Lord because those words are used in Section 78. We are not changing it. We are keeping the same phraseology, which is well understood and easily capable of being identified. We believe that that is perfectly fine.
I am extremely pleased to hear from the noble Baroness that Amendment No. 144 is unnecessary because it will be implied into the jurisprudence under Clause 93(3) when, as undoubtedly it will be, it is considered by the courts in future.
However, I should not like the noble Baroness to believe that the Opposition accept that the changes made by Clause 93 are marginal. They seem to me to be radical in two respects: first, we now have a general inclusionary rule, rather than a general exclusionary rule; and, secondly, that inclusionary rule is subject to a discretion to exclude only in three of the eight cases—that is, in subsections (1)(d), (1)(e) or (1)(h) of Clause 93. That is a matter which we believe should be reconsidered on Report in the light of what the noble Baroness said today.
A number of commentators have referred to Clause 93 as the "round up the usual suspects" rule. That phrase was made famous—indeed, immortalised—by Captain Renault in the well-known film "Casablanca". I suppose that those who have seen the film several times might like to add somewhere in the Bill the first part of Captain Renault's sentence:
"Major Strasser has been shot".
Perhaps that should be the title of Chapter 11. I beg leave to withdraw the amendment.
I have only this comment to make. I believe that this clause requires such drafting that it will be far more convenient to start from the beginning. I have one particular problem. Clause 93(3) states:
"The court must not admit evidence under", and it then sets out the method of deciding whether it should admit it. But that is confined to paragraphs (d), (e) or (h). I do not understand why paragraphs (b), (c), (f) or (g) should not require the same test to be applied. Why has the limitation been restricted to paragraphs (d), (e) or (h)? If I knew the reason for that I would be able better to reflect on the merits or demerits of Clause 93 stand part. Perhaps the Minister could provide that explanation.
I support the observations of the noble and learned Lord, Lord Ackner. We find the whole of this clause objectionable for the reasons mentioned also by the noble Lord, Lord Kingsland; that is, it is now inclusive rather than exclusive. We also feel that had it not been for the alarums of this morning, we would have been in a position to move Amendments Nos. 143A to C, which deal with some of the points raised by the noble and learned Lord. The whole of the drafting of this clause is objectionable in principle. Accordingly, in due course we on these Benches shall carefully consider it on Report.
I too support the views of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford. The Government should seriously reconsider the whole of Chapter 1 in Part 11. Clause 93 has been criticised so much and is so difficult that I believe the Government should consider replacing it or leaving it out altogether.
The expression "bad character" is not defined in the Bill. It is a very vague, wide expression. Opinions differ as to what is bad character. Some people condemn natural behaviour, which is not very serious, as bad character. In any event, we should bear in mind that this clause will apply not only to deciding whether or not the accused is guilty; if he is found guilty, it will also be relevant to sentence. Therefore, vast prejudice could result. I hope that the Government will, as has been suggested, reconsider this clause and either replace it or do away with it altogether.
I shall come straight to the questions asked by the noble and learned Lord, Lord Ackner, in terms of understanding why we differentiate between the specific subsections outlined in Clause 93(3). Clause 93(1)(a) and (b) both concern instances where the defendant seeks to adduce evidence in pursuance of his or her own defence. We have taken it that it would be proper for that evidence to be so admitted.
Clause 93(1)(c) covers important explanatory evidence. As noble Lords will know only too well, the common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. We touched on that in an earlier debate. It is quite difficult to describe this evidence as probative because, strictly speaking, it does not prove an issue relating to guilt but sets other evidence in context. Therefore, seeking to admit this evidence —
Does the Minister not agree that although it may be admissible explanatory material as she has explained—she has previously led us to the case law on that—there is still a discretion for the court to exclude evidence on the basis that its probative value is less than its prejudicial effect? Why is there the change here?
We believe that if we are setting up a statutory new scheme we have to have a certain precision with language. One of the main criticisms of our past rule was that it lacked precision and clarity. We are seeking to imbue the Bill with precision and clarity. In arguing to not include such evidence, we are really saying that we are seeking to admit this evidence under Clause 93(1)(c) in a separate category. Historically, there has never been a disaggregation between evidence which is included as background and that which is included as bad character. In this section we are seeking to disagreggate those two elements, which have hitherto been conjoined.
Therefore, because of that difficulty, we are seeking to admit this evidence under Clause 93(1)(c). Seeking to admit the background evidence under Clause 93(1)(e) would perpetuate difficulties that the common law has encountered. Instead, we believe that that evidence should be separately recognised and admissible. So Clause 93(1)(c) therefore makes clear provision for evidence to be admitted where its value to the case is in helping the jury to understand the other evidence that is being presented.
I apologise to the noble Baroness. As usual, she is extremely courteous in giving way. Before she leaves (c) perhaps I may make an observation about the relationship between precision and discretion in legislation. The noble Baroness lamented the lack of precision in this branch of the law. I suggest that the reason why it may appear to lack precision is because this is an area which has pre-eminently fallen within the discretionary power of criminal judges. They have had to consider a long line of issues on the facts and draw conclusions from them.
The noble Baroness now seeks to give more precision; but in doing so is removing the discretion that the judges used to have. As the noble Lord rightly said, under subsection 1(c) the judge will no longer have the discretion to exclude. So of course the legislation will have more precision in that respect. However, with the greatest possible respect to the noble Baroness, I suggest that that is a substantial reduction in the rights of a defendant in a criminal trial. In a country which has always prided itself on those rights, I view that as a serious threat to what has been guaranteed over many decades, and in some cases centuries, by the common law.
To avoid the Minister replying straight away, perhaps I may add to that. We are referring to evidence of bad character. Subsection (1) starts by referring to admission of evidence of bad character. It may be that such evidence is admitted because bad character is explanatory material, but there is a clear discretion at present for the judge to exclude that if its prejudicial effect exceeds its probative value.
The result of the way in which this clause is drafted—the Minister's reply suggests that this has not been thought through—is that there could be evidence of bad character, which is only background material but is admissible even though its prejudicial effect is much greater than its probative value as explanatory material. That cannot be right or fair. Unless this is amended and reconsidered, it must be excluded under Article 6.1
I do not agree. Clause 94 sets out what falls within the category "important explanatory evidence". A judge hearing and dealing with the case will be able to determine whether the evidence on which the prosecution seeks to rely can properly fall within the definition of "explanatory". Clause 94 states:
"For the purposes of section 93(1)(c) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial". It is perfectly possible for defending counsel, exercising his duty—as he must—to say about an application by the prosecution for the submission of evidence that falls within this category—Clause 93(1)(c)—that the evidence upon which the prosecution seek to rely falls outwith the definition in Clause 94(a) or (b). That is a proper argument that can be made on behalf of the defence. If the court feels that the evidence cannot be included and that Clause 94(a) and/or (b) is not satisfied, of course it is still open to the judge to exclude it.
In pursuance of the suggestion made by the Law Commission, we have tried to get some clarity, some certainty about the way with which these matters are dealt. That is the rationale behind the disaggregation that I have just outlined.
The judge's responsibility—be he lay or professional—to manage the case in accordance with those rules and in accordance with fairness and justice is absolutely plain and contained and referred to in the provisions.
Perhaps I may continue. I hope I have answered the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. We have gone through the matter on several occasions. I should be most grateful if I could continue this section and finish answering the noble and learned Lord, Lord Ackner. Then of course I shall give way and answer any questions that noble Lords may wish to ask. It would be a courtesy to me if I could just conclude this part.
Clause 93(1)(f) states that the evidence is admissible if,
"it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant".
There is the direct reference to probative value. One therefore does not need the refutation upon which one subsequently has to rely in Clause 93(3).
The other issue is on Clause 93(1)(g). Evidence under paragraph (g) would be rebuttal evidence to be called in order to disprove, or to set in the right context, evidence put in by the defence, which the prosecution seeks to rebut.
In dealing with Clause 93(1)(c)—the words "important explanatory evidence"—the Minister said that it would be the duty of defence counsel to object when an application was made by the prosecution to introduce such evidence. There is no longer a requirement on the prosecution to apply to put in such evidence. Clauses 93 and 94 do not require the leave of the courts, as I understand it, for the introduction of that evidence. So when the noble Baroness says that it is the duty of defence counsel to object, when the prosecution makes an application, she is, I say with great respect, mistaken on the effect of the clauses.
It was a laxity of language or an imprecision on my part. The noble Lord will know that the defence is served with all evidence upon which the prosecution intends to rely, whether by way of used or unused material. If the prosecution serves that evidence, it is always open to the defence to say, "This evidence should be properly excluded because it falls outwith any of the rules of admissibility of evidence before the court". Therefore, if the defence has been served with evidence under Clause 93(1)(c), which it feels falls outside the terms of Clause 94(a) and (b), and that the prosecution is not entitled to adduce it under the other provisions of Clause 93, it could say to the judge, "The prosecution seek to suggest that this can properly be included under Clause 93(1)(c). We disagree because we believe that Clause 94(a) and (b) have not been so satisfied, and you should exercise your discretion and exclude it".
I apologise for saying "on application". It would not be an application, but it would be possible for the defence properly to make those submissions on behalf of the defendant and for the judge to so determine.
That is absolutely right. If the defence knows that the prosecution intends to adduce evidence, they can have an argument as to whether it comes within Clause 93(1)(c)—whether it is "important explanatory material". That can happen now. But, if the judge decides that it does, that is the end of it. The judge cannot say, "Yes, it is important explanatory material, but it has huge prejudicial effect". That is the point.
At the moment there are two decisions to be made: first, is it explanatory material and, secondly, weighing in the balance the prejudicial effect against the probative value, is it fair to allow the prosecution to adduce it? The Government are just getting rid of that second test altogether. The judge may be sitting there, thinking, "I am presiding over an unfair trial. It is important explanatory material, but if I were allowed to carry out the test that I can at the moment, I would most certainly exclude it: it is leading to unfairness". The Minister may not have appreciated that, and certainly those who drafted the clause have not appreciated it.
I invite the noble Lord to look at the wording of Clause 94(a). It states:
"without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case".
That is a high threshold. I repeat:
"would find it impossible or difficult . . . and"— not "or"—
"its value for understanding the case as a whole is substantial".
So, a fairly high watermark must be satisfied before the judge would be satisfied that the evidence falls within that which could properly be described as "explanatory evidence". We have other provisions under Clause 93(1)(d) and particularly (e). There is an argument that one should simply put them both in (e):
"it is relevant to an important matter in issue between the defendant and the prosecution".
We say that there is a difference between evidence that does not go to proof of guilt but goes to explanation and evidence that goes to guilt. That disaggregation is helpful in the interests of justice in order to get a proper balanced trial.
Therefore, I understand the nature of the comment made about probative value. In response, the Government say that the appropriate test on admissibility and evidential worth is to be found in Clause 94(a) and (b). That is the test that will apply to Clause 93(1)(c).
I hope that I have tried to express myself with a modicum of precision. I have already said that it is very difficult to describe the explanatory evidence as probative, because strictly speaking it does not prove an issue relating to guilt. It sets other evidence in context. The appropriate threshold for that contextual evidence is to be found in Clause 94.
I am grateful to the noble Baroness. The evidence may not be probative in the sense that she describes, but it can certainly be prejudicial. We could take the example of two people who are alleged to have committed a crime. One pleads guilty and is not in the dock; and the other pleads not guilty but is in the dock. It is extremely difficult to explain the background to the crime without talking about the second participant. That is an example of a situation in which the prosecution may press very hard to exercise Clause 93(1)(c).
The judge may conclude that the prejudicial effect of allowing that evidence in—the fact that the second party had already pleaded guilty—far outweighed its probative value. Yet, under this subsection, there is nothing whatsoever that the judge could do to stop the inclusion of the evidence; because in this particular set of circumstances it might be very difficult for a jury to understand other evidence unless they knew that a second party had participated in the alleged crime.
I have been following the discussion very carefully and intervene to ask my noble friend a question. What difference would it make if Clause 93(3) were widened to include Clause 93(1)(c)—if the second test mentioned by the noble Lord, Lord Thomas, were also to apply? It seems to me that that would not weaken in any way what the Government seek to do.
In response to my noble friend, the whole point of creating a new statutory arrangement in this area is to bring together jurisprudence, which has developed over a very long time, and the way in which common law rules have interacted with the various statutory provisions over a period of time. This is our opportunity to bring all the provisions into one quite succinct place and express it with as great a clarity as we can to make sure that the ways in which these rules are applied are comprehensive across the piece. That is the Government's intent.
Of course, I hear the strong views expressed by others who would like to construct things differently. I have sought to explain why, in answer to the noble and learned Lord, Lord Ackner, the Government have fashioned things in this way. I hope that I have succeeded in doing so. We are not complacent about the issues that will be engaged by the nature of Clause 93. However, the test is only one of a number of ways in which the safety and fairness of trials are protected. The scheme includes other safeguards that I shall outline in due course to ensure that defendants' interests are given appropriate consideration. Therefore, we have not applied the exclusionary test to circumstances when defendants' interests are properly safeguarded in some other way and there would be no proper role for that test to play. That is the rationale behind what we have done.
I can accept that noble Lords may not agree, but I hope that I have explained with a modicum of clarity why the Government are doing what they are currently minded to do.
The Minister explained the Government's position very clearly, but would she bear it in mind that this is one of the very points to which the Lord Chief Justice drew attention in his paper? A problem will arise because it is said that the provision will not allow the general discretion of the judge to exclude prejudicial evidence in these circumstances. That is one of the things that is worrying the judiciary. I do hope that the Minister will bear that in mind.
We have very much taken into account what the noble and learned Lord says; and, indeed, what the noble and learned Lord the Lord Chief Justice said in relation to these concerns. That is why we have tried to explain it as fully as possible. We have also tried to reassure noble Lords. The noble and learned Lord knows well that we have been able to rely on the sagacity of our judges and on the faithful discharge of their duties to ensure that that which is in accordance with fairness and justice is actually done in relation to the admission of evidence.
Noble Lords also know that this category of inclusion of evidence has been well established for some time. The judges of England and Wales are very experienced in determining whether evidence falls within the specific category of being necessary for the explanation. We therefore expect that judges exercising their discretion pursuant to Clause 93(1)(c) in conjunction with Clause 94 will be able to discharge their duty and ensure that there is a fair trial, without doing violence to the necessity to have before the jury the sort of evidence needed to make an informed judgment.
It is sometimes difficult because one has to treat juries with respect. They need the tools to make informed judgments. They will judge the facts. We know that this evidence has been of assistance in the past because that is why new approaches have developed in jurisprudence—inclusionary information that has hitherto been excluded can now be admitted in evidence so that juries can make sense of the whole package presented to them.
I have listened very carefully to the noble Baroness's explanations in the past few minutes, which were given with great precision and clarity. However, as one of the noble Lords present who is not a lawyer, there is one thing that I cannot get out of my mind. We have been repeatedly told, not only in this House, but also in the public launch of the Bill, that one of its purposes is to shift the balance of the criminal justice system—in favour of the victim, by implication—against the alleged criminal. That means that every time the Minister says that the purpose of a particular clause is to bring the established principles of jurisprudence together with statute law and common law, I am left with the question whether part of its purpose is not also to play its part in shifting the balance in the way that it was proposed the Bill would do.
It would help me greatly if, on each clause, the Minister could say, for example, "This is introduced purely for organising legal inheritance purposes and plays no part in the shifting of the balance". Otherwise, in common with other Members of the Committee, I shall continue to suspect, however clear the explanation, that any clause forms part of the equipment for shifting the balance, which is the fundamental aspect of the Bill. I hope that I make myself clear.
I understand the right reverend Prelate's remarks about what the media have said and how they have presented it outside the House. Regrettably, I have no control over how anyone other than me expresses the provisions. The Government seek parity, fairness and justice, and the delivery of justice in a clear, understandable, recognised way to those who participate in, and rely on, the justice system.
It is right that there is a perception that the balance has been put far too much in favour of the defendant, and not properly in favour of the victim. Our jurisprudence has developed in a sound way. The Bill seeks to set out the position clearly so that we all have the same starting point, giving scope for further development. But the fundamental principles of what Clause 93 does are in our jurisprudence already.
We hope that we will now have the clarity and precision to enable us to say, "In one place, you will be able to see what we have said for the defendant and for the prosecution. That legislation provides the balance and the clear exposition of the position". We know that the jurisprudence will continue to develop in accordance with our common law. The best way of saying with clarity, not only to those responsible for administering the justice system, but to those affected by it, is that we have the balance right and it is here in one place. The legislation will provide in one place the answer to the arguments and debates about whether victims are getting a proper, fair deal, whether defendants are properly protected, whether the system works and whether it is balanced. I do not know whether that will silence those who continue to rage about the issues. All I can say is that the Government are doing their best.
Perhaps it will assist the noble Baroness if I suggest that, when the measure reaches Third Reading, instead of having the abstract discussion that has occurred today, in which she has acquitted herself brilliantly, she could introduce an element of what one might call brass tacks on the matter of balance. Either the Bill makes a significant change to the balance between the prosecution and the defence in a criminal trial or it does not.
There may or may not be justification in some cases for moving the balance towards the prosecution. To cope with the question, one needs specific examples. To test the merit of Clause 93 and so forth, we need a specific example of a case. We need, for example, a case concerned with allegedly important explanatory evidence that would probably be ruled out by the judge as inadmissible at common law, but that would go in under the Bill, and where it is desirable that it should do. With such a concrete example, one would be in a far better position to form a view of whether the provisions had any merit.
I understand what the noble and learned Lord says in that regard. I shall see whether I can return with some case studies as he describes. One of our difficulties, not in the debate in this Chamber, but elsewhere, has been that every time one side of the debate says, "We want this to be included in Clause 93", the other side says, "But it is already possible" and the Government say, "Yes, it is". That debate is happening now. We have put everything in one place to enable concision.
I am happy that we should continue that debate. I will see what can be done, but I think that the debate will continue on Report, not in Committee. I hope, therefore, that Members of the Committee will take into account the expansive nature of today's debate so that we can hone any further debate on Report to only that which is absolutely necessary.
I admire the perspicacity of the intervention by the noble and learned Lord, Lord Cooke. It is notable that, although the explanatory memorandum devotes quite a lot of illustrative space to other clauses, its contribution to the explanation of what Clause 94 means is especially spare. It consists, in paragraph 335, of two lines:
"Clause 94 defines what is meant by important explanatory evidence. The definition mirrors that used in the context of non-defendants".
It would be extremely helpful if, on Report, when we will undoubtedly return to Clause 94, the Government provided greater detail about the factual situations in which the provision applies.
The extensive interrogation of the noble Baroness over the past 40 minutes seems to give great weight to the observation by the Lord Chief Justice on evidence of bad character, at paragraph 13 in his supplementary note. He expressed his own view and that of the Court of Appeal Criminal Division as follows:
"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".
In regard to the noble Baroness's specific answers to the problems which confronted me, I do not understand yet why the other paragraphs, to which I have drawn attention, should not come within subsection (3). I never drew attention to paragraph (a) for obvious reasons—the parties have agreed. In paragraph (b), the evidence can be adduced by virtue of cross-examination, which could be cross-examination that would not now be permitted. No restriction is placed on the cross-examination. Apparently, we will have the possibility of situations in which, hitherto, the judge would say, "No, Mr Brown, I don't think I should follow that course", seeking to protect the defendant from excessive prejudice. It may be a case in which the judge himself would warn the defendant, and not proceed further with a line because it lets in cross-examination or the defendant's record.
Clause 93(1)(c) states,
"it is important explanatory evidence".
So it could be, but the test of probative value and prejudice is perfectly appropriate to that. The same applies to paragraphs (f) and (g). We should have further material by the time we come to Report stage. Therefore, I do not seek to divide the Committee.
Perhaps I may inquire which piece of information is right: that is, that we will not go on this Bill beyond 4 p.m. or that we could go on until 6 p.m.? I am in the unhappy position of having a wife who cannot be left alone. I have certainly covered the position until 4.30 p.m. Should I cover the position beyond that?
Through the usual channels, it is the intention, and it has been agreed, that we should go until 6 p.m. on this Bill.
The substance of Amendment No. 146, as it relates to Clause 93(1)(d), has already been discussed as a consequence of earlier amendments. The noble Baroness will be aware that the observations made from this side of the House were that Clause 95(1)(b) would allow offences that had nothing whatever to do with the offence with which a person is charged to be brought in evidence against them.
The noble Baroness has, most courteously, already given Members of the Committee the benefit of her views on that aspect. Therefore, I do not propose to provoke her again in that respect today. The only point that remains is to ask about the way in which subsection (1) is intended to be implemented by the Secretary of State.
I am extremely concerned that the category of offences stipulated in Clause 95(1)(b) is a matter not for the Bill, but for an order made by the Secretary of State. My concern deepens when I look to the way in which "category" is defined in Clause 95(2), which states:
"A category prescribed by an order under this section must consist of offences of the same type".
On turning to the Explanatory Notes to seek a definition of "the same type", I find that it is exceedingly wide.
In my submission, the discretion given to the Secretary of State in these circumstances is a discretion that the Committee should not permit. I beg to move.
I support my noble friend Lord Kingsland. It seems extraordinary that in Clause 95 the Secretary of State is given the power to categorise offences in any way he wishes for the purpose of that clause. It goes on to say that the offences must be,
"offences of the same type", which invites the question: what are offences "of the same type"?
Following on from what the noble and learned Lord, Lord Cooke, said, I ask: is an offence of theft "of the same type" as an offence of robbery? Is it or is it not? The only difference is that there is an additional requirement in an offence of robbery that may not be present in an offence of theft from the person. Is theft an offence of a similar nature to an offence of burglary if the intention is to steal money? If I take money from someone's pocket, am I committing an offence of the same type as if I walk into his house and take it off a kitchen table? What do the words "same type" mean? How wide do they go?
It could be argued that many offences are of the same type if their intention is similar. In some ways, it is the intention of the person carrying out the offence that makes it an offence of a similar type to one which he may commit with the same intention but by a different means. Therefore, does it mean that if a man in his mid-40s commits on one occasion an offence of burglary, or he is charged with an offence of burglary, that the prosecution would be entitled to introduce evidence that at the age of 16 he had had a conviction for theft against him?
I thank the noble Lord, Lord Kingsland, for indicating that he has had quite enough of me on Clause 93. I thank him for his charity. I hope that I shall be able to clarify, to the satisfaction of the noble Lord, Lord Carlisle, how we currently see Clause 95(1)(b) and what will be included in an order.
Amendment No. 146 has been tabled as a consequence of Clause 95(1)(b), but it is important to make it clear that the paragraph does not confer admissibility. That is governed by Clause 93. Its sole function is to define an offence of the same category. Without this provision, it would leave an offence of the same category entirely undefined, which I know that noble Lords would find undesirable.
Clause 95(1)(b) is therefore a paving provision, as noble Lords have indicated. The intention is that the presumption created by Clause 93(1)(d) should apply to convictions for offences that are similar to the one with which the defendant is charged, as to previous convictions for the same offence.
We consider that the most straightforward way of achieving this is to make provision for categories which can be drawn up and considered in more detail in that context. By virtue of Clause 299(5), an order prescribing a category or categories of offences will be subject to the affirmative resolution procedure and therefore to active parliamentary scrutiny. We shall have an opportunity to look more specifically at these issues.
Our current view is that an offence is of the same description as another if the statement of the offence in an information or indictment would be the same. In plain language, this covers convictions for the same offence. Thus where a person is charged with theft or rape, only a conviction for those same offences would be covered by this provision.
It is worth noting that the statement of the offence in an information or indictment relates to the particular law that has been broken as opposed to the circumstances of the offence. Therefore there need not be a specific coincidence in the circumstances of the offence, although clearly the extent to which any dissimilarity affects the probative value of the evidence will need to be taken into account when assessing that probative value against its prejudicial effect under Clause 93(3). An offence is in the same category as another if they both come within a category which has been prescribed for this purpose by the Secretary of State. When we have the prescribed schedule, we shall be able, using the affirmative resolution procedure, to consider and debate what should or should not be included therein.
I am most grateful to the noble Baroness for her clear response. I hope she will forgive me if I say that I derive little comfort from her reassurances about the affirmative procedure. As the noble Baroness will be well aware, your Lordships' House will not have the opportunity to amend the contents of a draft affirmative document. It must be either completely accepted or completely rejected; and the precedents for rejecting such documents laid before your Lordships are extremely rare.
By contrast, if the categories appeared on the face of the Bill, your Lordships' House would have the opportunity to amend the list presented. We would be, therefore, in a much more powerful position to deal with the matter during the course of the Bill than we will thereafter.
It is often the custom for the Government, while a Bill is being considered, to place before your Lordships' House a draft of some of the statutory instruments that they intend to make under the Bill. I should like to invite the noble Baroness to place such a draft before your Lordships' House on Report so that we can see clearly what the Government have in mind in making future rules under this subsection. I wonder whether the noble Baroness wishes to respond to that suggestion?
I wished to make sure that my initial reaction would accord with my instructions. I am happy to say that it does. Noble Lords will understand that time may be short, but we shall use our best endeavours to meet the noble Lord's request.
moved Amendment No. 146A:
Page 65, line 47, at end insert "in the following circumstances, namely—
(a) the prosecution can show continuous or persistent commission of similar offences by the defendant since the time that he first committed them, or
(b) the defence has introduced evidence of the defendant's experiences before the age of 14"
"Offences committed by a defendant when a child".
It repeals Sections 16(2) and (3) of the Children and Young Persons Act 1963. Subsections (2) and (3) concern offences committed by children and ensure that over-21 year-olds do not have convictions from when they were under 14 years of age brought up in later trials.
I believe that the clause as it stands would place an unfair burden on those who may have made mistakes in the past. Fourteen years old and under is a very young age to commit an offence on which you can be judged into adulthood. There are many reasons why juveniles commit crimes at such an early age: a bad home life, having fallen in with the wrong crowd or simply not having been taught any better and thus not developing the rational and more normal behaviour which comes with age and experience.
We have heard arguments regarding why it is not desirable for a jury to hear about former convictions, given the prejudice that a criminal record can bring, and I feel that these provisions are particularly hard. On hearing of a previous conviction, a jury is likely to attach more weight than it should to a criminal record and may convict on that evidence alone, especially when the current crime is the same or of a similar nature.
This amendment would ensure fairness by narrowing the instances in which evidence of a criminal record can be adduced to two specific categories. The first category is that only those who continually commit crimes throughout their youth would have their record put before the jury. It would exclude those who made one mistake and learnt their lesson. I believe strongly that they should not have to continue to be punished by reference to something in their past.
All noble Lords in the Chamber were 14 years old at one time. I am sure that we can recall our own misdemeanours, along with those of others. Furthermore, most of us have been fortunate enough to be parents and live in fear and trepidation that our children may not stick to the straight and narrow. This provision creates an intolerable burden for a young person who may grow up to be a very responsible citizen. It will haunt them all their life.
The second category is if the defence has introduced evidence of the defendant's experiences before the age of 14. This would create a similar category to the current law on similar fact evidence, where a defendant adduces evidence of his good behaviour and thus loses his "shield" to past convictions.
I feel very strongly about this. The wide drafting of Clause 101 will cause grave injustice if it is passed unamended. I beg to move.
I rise to oppose the Question that Clause 101 stand part of the Bill. I am encouraged in doing so by the Children's Society, Barnardo's, NCH, NCB, NAYJ, Liberty and NACRO, all of which are urging the Government to reconsider these proposals on the basis that they are likely to have a damaging effect on children and young people.
The current situation is such that the law makes a special provision restricting the admissibility of evidence for crimes committed during childhood if a person is charged with offences in adulthood. We want to see those special provisions retained.
I have four major areas of concern. My first concern is about the proposal to widen the type of activity that can be admitted to the court. The admissibility of evidence of a defendant's previous convictions is currently restricted, but provisions in other clauses seek to widen that admissibility. With its wide definition of "bad character" in Clause 90, the Bill goes further than previous convictions to include previous allegations, acquittals and general behaviour, the kind of things that the noble Baroness, Lady Seccombe, so eloquently described.
The wider range of circumstances would lead to the court's consideration of the defendant's inclination to commit crime rather than evidence that he or she has actually committed the specific crime of which he or she is accused. Surely the purpose of a trial is to determine whether a particular defendant committed a particular crime, and not to make general judgments about the defendant's previous behaviour.
My second concern is that neither the White Paper, Justice for All, nor the Law Commission's 2001 report, Evidence of Bad Character in Criminal Proceedings, nor the Auld report, made any specific reference to the effects on young people, nor identified particular problems with the current situation in relation to offences committed before the age of 14. Consequently there has been no meaningful consultation in this area.
The Children and Young Persons Act 1963 established an exception to the admissibility of evidence rules contained within the Criminal Evidence Act in recognition of the particular circumstances and experiences of children in relation to the rule of doli incapax. Under this principle, children between the ages of 10 and 13 were presumed to be incapable of criminal intent, and this presumption had to be rebutted by the prosecution before they could be convicted.
The Government's rationale for making a change in this area is not clear. I therefore particularly question the inclusion of offences committed as a child into the proposed scheme. Current criminal justice legislation in this area makes the distinction between the definition of a "child", defined as a person under 14, and a "young person" as between the ages of 14 and 18. While I would in no way want to endorse this distinction as I remain committed to the definition of a child as under the age of 18 within both the Children Act 1989 and the UN Convention on the Rights of the Child, it is difficult to understand why the Government seek to remove this distinction through Clause 101.
My third concern is about the relevance of offences committed as a child to criminal proceedings for offences over the age of 21. It is questionable whether any of us would consider it reasonable or relevant to be held to account for actions and behaviours during childhood after a potential gap of up to 11 years. Surely we could consider that a person may very well have changed during that time into someone almost unrecognisable from the little tearaway of 11 years old.
My final concern is about rehabilitation and policy consistency. The Government's proposals are particularly puzzling in the light of the recent Home Office report, Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act (July 2002). The report contains a proposal for a "clean sheet" at 18 in respect of disclosures to employers for all but the most sensitive posts. In recognition of the particular vulnerability of young offenders, the review also considered whether a similar framework should be applied in respect of the admissibility of those previous convictions in court. The report concludes a preference for the current reliance on the general rules of relevance and the provisions of the 1963 Act. However, the Bill proposes to overturn the current situation on which the recommendations in the report were based and is potentially introducing contradictory policy in this area. This is extraordinary strabismus. The Government are looking both ways at once.
To summarise our objections to the clause, the important legal safeguard of the principle of doli incapax has been eroded by Section 34 of the Crime and Disorder Act 1998 so that a 10 year-old child is now presumed to be as criminally responsible as a fully mature adult, a situation that would shock many of our European neighbours. The further erosion through the Bill of any safeguards for children and young people in relation to a recognition of their age and capacity for change and development, coupled with the widening of the definition of "bad character" and the circumstances in which evidence is admissible in court, is both significant and very alarming. I urge the Government to reconsider their proposals both in respect of allowing young people to move on in their lives and an assessment of the continued relevance of their behaviour at a very young age to their future position in society.
NACRO has carried out a great deal of work researching the causes of children's crime and the effect of criminal findings upon children and their futures. My first observation is that there is overwhelming evidence that most children under 14 who commit crime are socially excluded in some way or another and are far more likely to commit crime because of that social exclusion. That finding has meant that NACRO has welcomed the work carried out by the Cabinet Office and the Prime Minister in trying to ensure that there is less social exclusion of children and disadvantaged families. The result of reducing social exclusion will be less crime committed by children.
The NACRO committee also found that increasingly criminalising children leads to further crime by children at an older age. If they come before courts at a young age and are sentenced to custodial terms of one kind or another when they are young, they are far more likely to commit crime later. There is some evidence that children who are regarded as "bad" because they have committed crime are more likely to be stigmatised later by those who live around them.
Can the Minister explain the rationale behind the clause? The Notes on Clauses do not make this clear. There is a risk that the clause will lead to precisely that further criminalisation of children which the research carried out by NACRO and the committee that I chaired found would be counter-productive.
Can the Minister confirm that the provisions of Clause 93(3) and 93(4)—the provisions that leave the court with the discretion on certain grounds not to admit evidence—as intended by the Government would, in the Government's view, be applicable to questions arising in a court under Clause 101? There should be at least the same level of discretion to exclude findings of guilt and other evidence of bad character which apply to children under the age of 14 as to activities of those same people when they are adults.
I support the noble Baroness's amendment in principle. I hope that the Government will be able to persuade us either that they have covered these concerns or that they will revisit these very important issues.
I support the amendment moved by the noble Baroness, Lady Seccombe, although it would give the Government a better chance to have second thoughts if the whole of Clause 101 were to be removed from the Bill. The Government might like to reflect on the old saying that every dog is allowed one bite. The noble Baroness, Lady Walmsley, was right to mention the Rehabilitation of Offenders Act 1974. Perhaps we could have an assurance that spent convictions under that Act will not be allowed to be quoted against defendants.
I conclude by suggesting to the Minister that the age of criminal responsibility in England and Wales is far too low and should be considerably raised.
I rise briefly to support Amendment No. 146A in the name of my noble friend Lady Seccombe. I should make it clear that there has been a printing error in the Marshalled List. Those who study them assiduously as their bedtime reading will notice that, on the original version, my name and that of my noble friend Lord Hodgson of Astley Abbotts appeared below that of my noble friend Lady Seccombe. Those names have now slipped, by some chance, to give our support to the noble Baroness, Lady Walmsley. It was a fortuitous printing error because I can now give my support to the noble Baroness, having heard the arguments that she has adduced today and the arguments put forward by the noble Lord, Lord Carlile of Berriew.
I, too, have received most helpful briefings from the various organisations representing the interests of children. They make strong points, and the Minister will have a tough job to persuade us that the arguments put forward should not carry the day.
I thank all those who have spoken on the same theme. I will try to answer the issues raised by the noble Baronesses, Lady Seccombe and Lady Walmsley, the noble Lord, Lord Carlile, and, more latterly, by the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay.
Clause 101 is intended to remove the absolute barrier to admitting evidence of certain juvenile convictions in trials of offences committed as an adult. Our aim is to simplify the plethora of rules governing the use of previous convictions and other misconduct as evidence and enable that material to be admitted and assessed on its evidential merits. We therefore believe that the sort of convictions covered by Section 16(2) of the Children and Young Persons Act 1963 should fall under the general scheme for admissibility set out in the Bill. Such convictions may well be relevant to the case, and where they are, it should be possible to introduce them as evidence, provided—I emphasise this—it is safe to do so.
The amendment in the name of the noble Baroness, Lady Seccombe, would add an unnecessarily complex series of restrictions to the admission of such evidence. May I explain why? With the amendment, it would be necessary either for the prosecution to show that there was a "continuous or persistent" commission of offences or for the defence to have introduced evidence of the defendant's experiences before the age of 14 years. It would then also be necessary to show that those convictions met the conditions of admissibility set out earlier in the Bill. We spent some time looking at those provisions in Clause 93.
The introduction of new, specific criteria would lead to complex legal arguments on whether conditions such as continuous or persistent commission of similar offences had been satisfied and would move away from considering the probative value of the evidence as the key to its admissibility.
The considerations suggested by the amendment may, in the circumstances of an individual case, be important. However, that is already reflected in the general scheme of admissibility set out in the Bill. For example, where persistent offending of a similar kind lends weight to the probative value of evidence, it will be taken into account by the court when applying the exclusionary test under Clause 93(3), as that involves assessing the probative value of the evidence against any prejudicial effect. That takes up the point made by the noble Lord, Lord Carlile, that that test will be able to bite upon any such evidence. Equally, where a defendant has introduced evidence of his experiences under the age of 14 so as to create a false impression about himself, evidence of his convictions at that age will be admissible to rebut that false impression, but it will be directed at a specific issue that has been raised during the trial.
However, it is wrong to impose such factors as prerequisites to the admissibility of the evidence, as it would mean that such convictions could never be used in other circumstances, no matter how relevant. We do not agree that that is the correct approach. I shall develop our argument on Section 16(2) and 16(3) of the Children and Young Persons Act 1963 in the context of the stand part debate that we are to have. The amendment raises the question of whether such convictions should be admissible only in certain pre-defined circumstances. For the reasons I have just given, we do not agree. For example, a conviction for an offence that had close similarities to the one now charged may well be highly relevant, even if committed at a young age, without any element of persistence.
There are problems, too, with the requirement that the defendant has introduced evidence of his experiences below the age of 14. What of the defendant who gives a misleading impression to the jury by claiming to be of generally good character or admits only to minor offending in his later teens? His convictions for younger offending may well be relevant to correcting the picture he has given to the jury. We talked about that earlier under Clause 93.
The amendment represents an attempt to limit the circumstances in which that sort of evidence is admissible to those in which its probative value might be thought to be most significant. We are not unsympathetic to that concern. However, we consider that the most appropriate way of ensuring that evidence of that nature is admitted only where its relevance is clearly established is not by having an arbitrary rule that risks excluding cogent evidence but by subjecting the evidence to the general scheme set out in the Bill, in particular the test to ensure that probative value outweigh prejudicial effect. In the light of the sort of anomalies I have referred to, we oppose a strict rule in this area.
The noble Lord, Lord Carlile, asked for a number of broad assurances, which I hope I have covered. Perhaps I should say a word or two more about Clause 101. Although they very much dovetail with the comments I made in answer to the noble Baroness, Lady Seccombe, I know that the noble Baroness, Lady Walmsley, wanted a slightly more generic debate on the import of Clause 101.
As I said, Clause 101 repeals subsections (2) and (3) of Section 16 of the Children and Young Persons Act. That provision precludes the use in adult proceedings of certain convictions received as a juvenile. Specifically where a person aged 21 or over has committed an offence, their convictions for offences committed under the age of 14 cannot be given in evidence. Clause 101 removes that arbitrary restriction and ensures that such evidence will instead fall under the general scheme for admitting it.
It is important that we bear in mind the overall purpose of this part of the Bill—to create a new and single statutory scheme for admitting bad character evidence that operates on a coherent basis. The intention, therefore, is to enable courts to admit evidence where it will assist in determining a case, but subject to suitable safeguards, which we have just explored. Clauses 93(3) will suffice to provide a safeguard, as will Clause 93(4), which we discussed earlier. The right balance is struck to ensure that relevant and only relevant convictions, including the sort with which Section 16(2) is concerned, can be put before the court; but that those with little value, especially because of their age, are excluded without creating an arbitrary exclusionary rule encompassing potentially relevant evidence.
I hope that I have been able to explain to noble Lords why we seek that extension.
Before the noble Baroness, Lady Seccombe, responds, would the noble Baroness, Lady Anelay, like to reflect on her assertion that there was a printing error? My experience, which goes back quite a long way in this House, is that the Public Bill Office does not make printing errors. If there was an error between the various noble Baronesses, that is their problem; it is not that of the Public Bill Office.
I hate to disagree with the noble Lord, but there have indeed been several problems in printing during the course of the Bill, as the Minister is also aware. The Public Bill Office has been under tremendous strain. It has been most apologetic when errors have occurred; as we always are when we cause errors. On this occasion, during the recess, when I tabled 180 amendments, I took the precaution of typing, faxing and keeping copies of them myself, so I am aware exactly what was tabled, which has been accepted. So I can assure the noble Lord that there was a printing error on this occasion, and there have been errors on this Bill on previous occasions. But they are so rare that I can perfectly well understand why he found that so surprising.
I thank those noble Lords who supported the amendment and the Minister for her detailed reply. There is much to read and digest in what she said. I wonder whether it is Clause 93 that needs redrafting. I shall take further advice and discuss the matter. At this stage, I beg leave to withdraw the amendment.
I can be brief, because I have the advantage of the views of the judges. They refer to the unnecessary verbiage in the Bill and in particular to Clause 102. They state that Clause 102,
"contains nothing more than a statement of the obvious".
If that is the case, why are we adding even further to this excessively long Bill?
Clause 102 deals with the approach that the court is to take towards assessing the truth of bad character evidence when considering its probative value. Of course, I take seriously what the noble and learned Lord says about the concern expressed by the judges. It would be a little unjust to describe it as verbiage, if for no other reason than that that term lacks elegance.
For those purposes, the court is required to assume that the evidence is true. That follows the recommendation of the Law Commission in its report, Evidence of Bad Character in Criminal Proceedings, Law Commission Document No. 273, and codifies the current common law.
The issue is this: probative value is a combination of the extent to which the evidence proves a matter in question and the extent to which it can be relied on. Assessing probative force is an important issue in admitting bad character evidence, as it can be excluded where its prejudicial effect outweighs its probative value. The question therefore arises: to what extent should the judge assess the credibility of a witness when considering the admissibility of their testimony of a defendant's bad character?
As the noble and learned Lord will, I am sure, know, the point was considered in the House of Lords in 1995 in the case of R v H, which involved allegations of collusion between two witnesses whose accounts were sought to be admitted in support of each other under the similar fact rule. The House took the view that the assessment of a witness's credibility should be left to the jury and the trial judge should accordingly make no inquiry into the quality of evidence when considering its admissibility. That maintains the important distinction between the roles of the judge and the jury: the jury being asked to decide matters of fact, such as the reliability of evidence; and the judge ruling on matters of law.
In its 2001 report, the Law Commission recommended that the law be codified along those lines. It considered that issues of contamination and collusion ought to be decided by juries and that there were undesirable consequences to judges being asked to examine the reliability of evidence when deciding admissibility. It pointed out that that would frequently require the prosecution to prove a negative—that there had been no collusion or contamination—which would often be impossible, and it much relied on the noble and learned Lord, Lord Mustill, in the case of H who said:
"This is more than I am willing to accept. The possibility of innocent infection is one amongst many factors which the jury will have to take into account; but to treat it as a unique 'threshold issue' loads the scales unfairly against the prosecution, and hence the interests of those who cannot protect themselves".
The Law Commission therefore concluded that the law should remain as it is—in other words that the court should assume that evidence of bad character is true when considering its admissibility. We agree, and Clause 102 adopts the proposal in the Law Commission's draft Bill to put that on a statutory footing.
Again, the Committee will be pleased, if not surprised, to learn that I can deal with this succinctly. The question that the judges raise is: how can a judge properly decide what evidence should be admitted without considering all the offences on which the accused is being tried? What is the answer to that question? I beg to move.
As the noble and learned Lord will appreciate, Clause 105(2) derives from the Law Commission's report on the subject and its draft Bill. It ensures that offences are treated in isolation when considering the question of admissibility. Thus evidence might be admissible on charge A but not on charge B. The fact that it is not relevant on charge B would not mean that it was inadmissible in the trial. Equally, admitting the evidence in relation to charge A would not make it admitted on charge B. The problem with the amendment is that it would remove this provision.
Clause 105(2) is required to make the position clear as I outlined it. We would not want evidence to be ruled inadmissible because, although relevant to charge A, it was not relevant in respect of charge B. Nor would we want evidence to be admissible across all charges because relevant to one of them. However, we recognise the concern, raised in the Lord Chief Justice's paper on the Bill, that when considering whether evidence should actually be admitted, the effect of the evidence on the proceedings as a whole should be taken into account. In other words, when applying the exclusionary test set out in Clause 93(3), the court should consider the prejudicial impact of the evidence on the trial as a whole, and not simply in relation to the charge to which it is relevant. That has always been our intention. We are happy to consider whether an amendment is necessary to put that position beyond doubt and will table one on Report if it proves to be so.
I hope that on the basis of that response, the noble and learned Lord feels able to withdraw his amendment.
So we reach another watershed in the Bill. We now turn to the problem of hearsay evidence, which always relates to the difficulty of challenging it. When a person says that he has been told some information by a third party, two questions arise. First, did the third party actually say what the witness says that he said? Secondly, if he did say what the witness says that he said, is it true?
The difficulties can be illustrated through the unfortunate circumstances of yesterday, when Mr Andrew Gilligan told the Hutton inquiry what he had been told by Dr Kelly, who unfortunately died. The issue was whether Mr Gilligan was actually told what he said he was told and whether it was true. That is a basic problem with hearsay evidence, and one approaches the clause with that in mind.
We on these Benches find the whole clause objectionable, which is why the clause stand part debate is grouped with the amendment to which I am speaking. Even if one were to keep the clause in some form, it is highly objectionable as it is framed. In subsection (1), we object to paragraph (d), which says that in,
"criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if . . . 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".
The noble Baroness, Lady Scotland, told us all morning that she was looking for clarification and certainty in the law, and to that degree was prepared in some circumstances to dispense with the discretion that a judge may have in deciding, for example, the balance between probative value and prejudicial effect. Here the discretion is handed over entirely to the court as to whether the hearsay evidence should be admitted, subject only to subsection (2), where there are certain factors for the judge to bear in mind. Members of the Committee may feel that they are fairly obvious matters, but the provisions are extremely vague and broad and introduce into the law of evidence in criminal cases hearsay evidence wholesale. It can never be certain for a defendant that he will not face evidence of this sort; whether a judge admits it or not, it will be a matter for applications, either pre-trial or during the trial. We object in principle to the introduction of hearsay evidence of that type.
Coupled with the amendment is Amendment No. 150, which is not very helpful because subsection (2) is in truth concerned with subsection (1)(d), and if subsection (1)(d) were struck out as we wish it to be, subsection (2) would not apply.
I do not propose to address noble Lords at any length on those matters, but I want to hear why it is necessary to introduce such an unsafe and uncertain principle of the law of evidence into criminal trials. I am not going to repeat the speech that I made so many times that noble Lords must be weary of it, relating to the problems of miscarriages of justice and the impact that they have on the public's confidence in the criminal justice system. This is just another example in the Bill of attempting to obtain more convictions and thereby risking more unjust convictions and more miscarriages of justice. I beg to move.
I offer qualified support for this chapter, chiefly because it contains Clause 107(1)(d), which I see as its great merit. I cannot therefore support Amendment No. 149, and I hope that the noble Lord, Lord Thomas of Gresford, will give the matter further consideration.
The reason for my qualified support of the chapter is that, to one's regret, there has been a failure by the English courts to redress a mischief of their own creation. The rule excluding hearsay evidence and some of the exceptions to it are entirely a creation of the courts over the centuries. Parliament never enacted such a rule. It might have been thought that, just as a rule was developed, so the courts would have accepted responsibility to modify it in the direction favoured by virtually all who have examined the subject in any depth—namely, by placing more weight on reliability rather than technicality. Instead, there has been in England and Wales much ossification—largely, I regret to say, achieved by the Appellate Committee of your Lordships' House, which has insisted on a strict bar even on hearsay of unquestionably high reliability, subject only to a list of exceptions now declared closed.
Notorious examples of that approach are well known to all criminal lawyers and may be found in all criminal textbooks. It is enough for me to give but one. In 1992, in the case of Kearley, the Appellate Committee held that, on a charge of drug dealing, police evidence was inadmissible that, within a few hours, some 20 customers or would-be customers had called at or telephoned the accused's flat seeking supplies, some of them asking for him personally. That decision was by a majority of three to two, with powerful dissenting speeches. However, the weight of the majority will be apparent when I mention that one of its members was the noble and learned Lord, Lord Ackner.
At least in part, some such decisions have invoked not only the hearsay rule, but a perhaps equally odd view that the rejected evidence was irrelevant. However, the Law Commission, on whose report this chapter of the Bill is based, appears to have accepted that some third party confessions, for example, previously inadmissible, would be admissible under their proposals. It is to be hoped that the reform now proposed, although it sorely needs simplification, will encourage the courts to a less austere view of relevance and more confidence in the common sense of juries, magistrates and trial judges.
In other common law countries, particularly Canada and New Zealand, the courts have moulded the judge-made law so as to accept broadly a general residual discretion to admit hearsay evidence of sufficient apparent reliability. The English courts have scarcely budged, however, and the time is clearly more than ripe for Parliament to step in, as has been recommended by many authoritative reports.
Unfortunately, though, the Law Commission, after a meticulous review of the field, produced a highly elaborate set of proposed new rules in a pattern reflected in the present Bill. In complexity, it far outdoes the existing law. I would respectfully urge the Government to heed the advice of the noble and learned Lord, Lord Woolf, the Lord Chief Justice. In his background paper lodged in the Library, he puts it thus:
"What is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in an appropriate manner".
It seems to me that a similar rule should apply in summary proceedings, bearing in mind that any misapplication of it could be corrected on appeal or otherwise—by review, for instance.
Indeed—and this is the point at which I come to Amendment No. 149—just such a clause is already in the Bill. Clause 107(1)(d) makes hearsay admissible in criminal proceedings if, as the noble Lord, Lord Thomas, said,
"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".
The genesis of that provision is in a clause rather tucked away in the Law Commission's draft and somewhat less strongly worded by the commission. The drafters of the Bill have moved this provision to a more prominent and more logical place and have improved the wording. The provision is intended to override all the detailed ones, even the complicated ones in the Bill, about multiple hearsay. That accords with the Law Commission's intention which regarded its clause, tucked away as it was, as an overriding provision. The commission suggested that the power would be used only exceptionally. However, neither in its draft nor in the Bill before the House is there that limitation.
So the Bill contains this general provision, giving the courts a flexible weapon to achieve justice in criminal law. The other elaborate, intricate provisions of the chapter are not essential and indeed distract from the real issue. In so saying, I venture to speak from more than 30 years experience as a judge, largely in New Zealand, but in various other countries also, including some five years as a Lord of Appeal in this House. I am not involved in politics in the slightest way nor even interested in tactical manoeuvres. With deference, but with a conviction born, I claim, of impartiality, I would suggest to the Minister and his colleagues that they might demonstrate open-mindedness, think again and move towards a more simple approach, a change in the present Bill which would, in importance and radicalness, be nothing by comparison with their proposed constitutional changes.
It is with trepidation that I follow the noble and learned Lord, Lord Cooke. My father always taught me of the importance of bewaring of the mythical Greeks bearing gifts. When one sees the Lords of Appeal in Ordinary shouldering blame, one should guard carefully. He need take no blame having played such a distinguished part himself in whatever reform of the law is possible within the judicial process in this House.
I follow with trepidation because to an extent I agree with the noble and learned Lord, Lord Cooke, and to an extent I disagree with him in supporting my noble friend Lord Thomas. I agree with the noble and learned Lord in what I understand to be a fundamental question in his speech as to what this provision really amounts to. I ask the Minister to tell the Committee whether Clause 107 and the following clauses are codification or change.
If those clauses are intended to be codification, they fail. I give an example of what is not included in the Bill. It is the inclusion of the regime—which will be familiar to the noble Baroness—set out in Sections 23 to 26 of the Criminal Justice Act 1988 dealing with the admissibility of statements contained in documents—a matter which is litigated daily in many courts, and usually these days without much difficulty in the light of useful guidance given by higher courts.
I perused the list of proposed amendments to the Bill and I see no attempt to create a single regime for hearsay evidence. I believe that the noble and learned Lord, Lord Cooke, and I would agree that it is desirable that there should be a single body of legislation that deals with hearsay evidence, whether it be of an oral or written kind, so that judges can make that decision of which the noble and learned Lord, Lord Woolf, spoke when devising his proposed rule. I ask the Government why they have not gone down the road recommended by the noble and learned Lord, Lord Woolf, of trying to produce a simple, single body of law to deal with hearsay evidence?
I also ask the Minister to explain to the House what difference the Government expect these provisions to make in practical terms. Although I agree with my noble friend Lord Thomas as regards the possible effect of the provisions, I have a suspicion that in reality they will have very little effect. Is that the Government's intention? If the expectation and intention of the Government is that there should be far more hearsay evidence admitted, it presents the risk of real dangers of miscarriage of justice, as outlined by my noble friend Lord Thomas of Gresford. I think, for example, of a range of cases of which I, my noble friend and, indeed, the Minister have great experience; that is, allegations of historic child abuse in which there are always protestations that those who would be called to give evidence are unfit so to do. There are many cases in which parts of indictments are dropped because potential witnesses are judged by the prosecution to be unable to give evidence because of reasons connected with their mental health.
If it is the intention or expectation of the Government that people falling into that category should have their statements read as part of the prosecution case on a regular basis, I for one, with many years of experience of those cases, would have grave misgivings. There would arise from those circumstances real risks of improper convictions based on evidence that stands no chance of being tested. If that is not an example of the range of evidence which the Government have in mind, I should like to know what is within their expected range. Regarding this clause and what follows, my feeling is that the Government owe us more of an explanation than is contained in the Notes on Clauses to the Bill as regards what they expect to happen in real courts and in real cases.
At the end of the day one is driven back to the reminder which the noble and learned Lord gave us of the view of the noble and learned Lord, Lord Woolf. Why do we not set out some very basic and far simpler rules and leave it to the judges to decide not what would be contrary to the interests of justice, as is set out in Clause 107(1)(d), but what is in the interests of justice—a positive test which is well understood by the courts?
Being interested in the hearsay rule I wholly support the idea that has just been canvassed that there should be a single regime. May I ask one question about this? If you look at Clause 107, you have to ask whether it substantially alters extant law and, if so, in what relevant effect. The other question is this: if it does in any relevant respect, is the position that somebody could be acquitted under extant law and convicted on other and different evidence admitted under Clause 107? I am afraid that I put it very simply but I hope that the point has been made.
In responding to the amendment with an absolute dearth of legal expertise, I was already quaking before the noble Lord, Lord Thomas, suggested that we might learn lessons from the Hutton Inquiry. I assure him that I have absolutely no intention whatever of following him down that particular track. We have quite enough to deal with regarding the Bill without being diverted into other significant and challenging issues.
I wrestled with the issue of how the Government should respond. The noble and learned Lord, Lord Cooke, rode to my assistance like a knight on a white charger when he accurately identified—rather more precisely than I am able to do—just why the Government intend to follow the course of action proposed with regard to the clause that we are discussing and why we consider that the amendments to it should be withdrawn.
I emphasise that the issue of the admissibility of hearsay evidence in criminal trials is a very important one. This chapter provides a comprehensive statutory scheme to replace the current complicated and inconsistent rules. The noble Lords, Lord Carlile of Berriew and Lord Campbell of Alloway, asked what was happening in this regard. We are repealing certain provisions and implementing in Clauses 109 and 110 improvements recommended by the Law Commission. The intention of this part of the Bill is to implement a scheme which is based very closely—as the noble and learned Lord, Lord Cooke, identified—on the recommendations of the Law Commission which gave these issues very careful consideration.
The commission spent three years examining how the law operates in practice and in developing and consulting upon its recommendations for change. The core of the commission's proposed scheme is that there should be some rules which allow for automatic admissibility of evidence (where judicial discretion plays no part) as well as an inclusionary discretion to ensure that the interests of justice are served. The scheme set out in the Bill adopts this approach.
The noble and learned Lord, Lord Cooke, elegantly indicated that we might take guidance from the comments of the noble and learned Lord, Lord Woolf, with regard to a simple approach to the matter. Therefore, it may be a challenge to this part of the Bill that total simplicity has not been achieved. However, it is certainly the intention to give effect to the Law Commission's proposals. There is no doubt at all that the amount contained in the Bill is very limited and is not, I would contend, unduly complex.
Let me also say at the outset—
Could I ask the noble Lord to get right down to the nitty-gritty of this? The Law Commission's proposals seek to alter extant law. If you accept that, you get the position—of which I have a horror—of a man who is acquitted under extant law and then under a new law where the evidence is admitted is convicted on retrial. That is the situation which arises. Ought not some safeguard to be inserted for that?
I think that there are safeguards against the position that arises from the noble Lord's anxieties. He will recognise that we seek to introduce a Bill that, in future, will create broad rules that are as straightforward as we can make them for the admissibility of the evidence. In doing so, we are following as closely as we can the recommendations of the Law Commission.
The group includes several amendments tabled by the noble Lord, Lord Dholakia, and spoken to by the noble Lord, Lord Thomas of Gresford, that require the court to satisfy itself that the interests of justice are met before any out-of-court statement can be admitted as evidence under this chapter or any other statutory provision. Amendment No. 154 is consequential and would bring admissibility of statements involving frightened witnesses within the same discretion. That is an important practical issue as well as one of principle, because we must achieve the right balance between consistency and discretion.
There are two broad categories where statements would be automatically admissible in Chapter 2. The first is where the maker of the statement is unavailable for a legitimate reason—for example, where the witness is ill, has died, gone abroad or disappeared, providing that reasonable steps have been taken to find them—and, secondly, business documents will be automatically admissible, unless their reliability is doubtful.
The Criminal Justice Act 1988 already makes those various categories potentially admissible, subject to leave and discretion provisions, but the appearance of certainty is illusory. In practice, most applications must be judged. That is a cause of concern, as the Law Commission found a lack of consistency in the way in which judges exercise their discretion under the Act. Some—perhaps those with a traditional hostility to hearsay—regularly exercise their discretion to prevent hearsay statements being admitted.
The amendments would emasculate this part of the Bill. They would undermine one of the most important benefits in reforming hearsay in criminal cases, namely that there should be much greater certainty that out-of-court statements will be admitted as evidence. Practitioners are calling for more certainty in the majority of cases, not less.
It is also important that the rules of evidence should lead to consistent and fair outcomes. The Law Commission has found that they do not in the case of hearsay. Different judges reach different conclusions about whether statements should go in. As the commission said in its consultation paper on the issue,
"the problem of discretion and arbitrary justice is not an imaginary one. Whether a prosecution is pursued may depend on the admissibility of evidence, and the question of admissibility may depend on the judge's discretion".
In the light of those findings, the Law Commission concluded that, for the relevant categories, the need to obtain leave is a lengthy and unnecessary procedural safeguard. We agree. If the rules of admissibility are reliant entirely on judicial discretion, as the amendments propose, there can be no certainty for the parties concerned. That is of particular concern given the commission's worrying findings that judges were being inconsistent in the exercise of their discretion under the Act.
I ask the noble Lord to consider his words carefully when he talks about inconsistency and discretion. In the past few minutes, he has talked about certain categories of evidence being automatically admissible. Does he really mean that? As I understand this chapter, although it is stated in a negative rather than a positive form, exactly the same kind of judicial discretion will exist as has existed before. If that is a correct interpretation of the Bill, with great respect to the Minister, what he said cannot be quite right. Can he clarify that?
Will the Minister give us some examples of the difference that will be made in cases? The lawyers will always earn their money trying to interpret evidence in different ways and persuading judges. However, those who collect evidence—the police, health authorities and others who carry out investigations—should know what kind of hearsay evidence the Government think is likely to be admissible in future.
I recognise the noble Lord's anxiety. Of course discretion will still be exercised. We seek to make clearer and define more effectively the area within which that discretion should be exercised, against the background of the Law Commission's anxieties, which are clearly reflected in its evidence on the point.
The anxiety that I was trying to identify on the amendments is that, effectively, they would take away the move that we seek to make in the Bill. They would return us to the previous position, in which we would not effect what we regard as the beneficial changes contained in the legislation, which were spoken to so accurately by the noble and learned Lord, Lord Cooke. I had hoped that his considered contribution would absolve me from having to present the case to quite the extent that I have done, but I recognise the appropriate challenges made.
The next issue is the extent to which the court should be able to consider other out-of-court statements falling outside the recognised categories of admissibility. Under Clause 107(1)(d), reliable statements not falling within one of the recognised categories, or a preserved common law rule, will remain potentially admissible. Amendment No. 149 would again remove that discretion.
One of the most forceful criticisms of the operation of the current hearsay rule is that reliable evidence can be excluded because it does not fall within any of the pre-existing categories. That can sometimes make it impossible for the defendant to put before the court credible evidence which points to his or her innocence, thus rendering a fair trial impossible.
As the human rights organisation Justice has commented,
"it is a powerful argument against a strict exclusionary rule that miscarriages of justice can be avoided only if the appellant is lucky enough to find a court prepared to decide his case otherwise than according to the law".
If the present inflexible rule can cause injustice for the defendant, there is likewise a risk of injustice when the prosecution is prevented from leading highly probative evidence. The Law Commission was strongly influenced by the need to prevent future injustice. It concluded that an inclusionary discretion was essential and should be available to both the prosecution and the defence. The vast majority of those consulted agreed. In the light of those strong concerns, I am bound to ask the noble Lord to withdraw the amendment.
Amendment No. 151 seeks to replace Clause 107(2)(h) and (i), and would require the court to take particular account of any unfairness to the parties when hearsay is being admitted, as well as any other relevant factor. Those concerns are already covered by the list of factors to be considered under subsection (2), in particular paragraphs (h) and (i), as already drafted. They would require the court to take account of any difficulty in challenging the statement and the extent to which that difficulty would prejudice the opposing party.
That test is intended precisely to allow the court to consider any unfairness to the parties which might occur were the evidence to be admitted. Any further clarification on the point seems unnecessary. Further, the court is already required to take into account any other relevant factor by the opening words of subsection (2). In the light of that reassurance, I hope the noble Lord will not press those amendments.
I have listened to this fascinating debate with interest. However, I want to draw attention to the words printed at line 21 of page 68 which are,
"assuming it to be true".
I note that similar words occurred in Clause 102.
Why should such an assumption be made and, if it is made, how will it be tested? It may be that subsection (2)(h) is relevant, but if so, how is the amount of difficulty involved to be assessed?
I hope that noble Lords will not mind if I respond to the question. Under Clause 107, one of the issues that must be determined before one considers whether the evidence should be included is to assume on the basis that one says, "If that which is not admitted is true, does it have the quality to cause the court to say that it should be admitted into evidence?".
The importance of the evidence should be considered on the assumption that it is true, when the judge comes to decide whether he or she will allow that particular matter to go before the jury. There is no other way of dealing with it. The evidence is proffered in the way that it is, but the court has to determine whether its quality and value to the case make it necessary for it to be admitted. There may be other challenges when the evidence comes in. The defendant may still say, "It may be hearsay, but it's not true". The question is: should the court have the opportunity to hear that challenge, or should that evidence be excluded? Have I made myself clear? I think that the noble Lord still feels puzzled.
Let us take the example given by the noble and learned Lord, Lord Cooke. In the case of Kearley, there was evidence that a number of people were phoning the house and asking to speak to the defendant by name and indicating by their comments that he had been the supplier of drugs in the past and that they were seeking supply on that occasion. In assessing whether that evidence should be admitted and thinking about its importance, the court would be entitled to say, "Assume for the moment that that evidence is true. Due to its probative value, importance and relevance, is it the sort of evidence that should be admitted so that the court can determine what it makes of it and the jury can decide what it wants to do with it?" It is a two-stage test. I hope that has helped the noble Lord.
I am grateful to the Minister for such careful consideration of the amendments. We are not satisfied with the clause. I have the quoted the dicta of the noble and learned Lord, Lord Cooke, in my favour so many times that I am always dismayed when I discover that he is on the other side of the argument. His argument that, if hearsay evidence is to be admitted, the rules must be a lot simpler should be heeded by the Government. They should read carefully what he said. For example, the subsection to which we take exception, subsection 1(d), would, as my noble friend Lord Carlile pointed out, mean that the statement was automatically to be admitted if, in a hearing, the court was satisfied that,
"it would not be contrary to the interests of justice for it to be admissible".
The burden is very much upon the defendant to establish that it would be contrary to the interests of justice for it to be admissible.
Amendment No. 152, on the other hand, puts the matter more positively. The prosecution would be required to establish that the court was satisfied that it would be in the interests of justice for the statement to be admitted. That would be a more satisfactory way of dealing with hearsay evidence than the proposals in the Bill. First, it is obvious that the judge would take into account the factors set out in subsection (2). Secondly, they amount to a shopping list that will unquestionably prolong hearings as counsel runs down them. Finally, I note that a later amendment, Amendment No. 154, has been grouped with these amendments. I propose to address that amendment separately when we come to that particular clause.
Our discussion has been extremely useful in clarifying to me where the problems arise in the clause. I shall give further consideration to the problems with hearsay evidence. I beg leave to withdraw the amendment.
I shall take up no time in mounting a spirited defence of the decision of the Appellate Committee to which I was party, because the noble and learned Lord, Lord Cooke, gave me no notice that he was going to rely on any past peccadillo of mine and my brothers. That has saved your Lordships from unnecessarily listening to what might otherwise have been of academic interest.
I am, however, delighted at the way he addressed your Lordships, because he spelt out in greater detail than I would have been able to give the wisdom of adopting what the Lord Chief Justice and the judges of the Court of Appeal have said. Perhaps I may set that out in a little more detail. It is to be found in paragraph 22 on pages 6 and 7:
"The need for the reform of the Rules of Evidence relating to hearsay is not in doubt".
So there is harmony on that. Secondly, they observed the way in which the drafting follows the recommendation of the Law Commission. One must not be hypnotised by the fact that the Law Commission has gone one way. They go on:
"However, we question whether the complexity of the provisions is necessary. What has happened is that the complex common law rules are being replaced by complex statutory rules, some of which are a repetition of the common law rules".
Then the Lord Chief Justice, who is particularly expert in the civil field, says:
"What happens now in civil proceedings is that a judge has a general discretion to determine how matters are to be proved. The judge has to exercise the discretion in the interests of justice. He is assisted in doing this, because the probative value of the evidence depends upon its nature and source. If it is not first-hand evidence, then it has the disadvantage that it has not been tested by cross-examination. Whether this matters depends on the circumstances".
Then, moving to the criminal field, he says:
"If we have got to the stage where it is considered that it is safe to allow juries to hear hearsay evidence, then we must be accepting that they can be trusted to use that evidence in accordance with the directions of the judges".
The paragraph ends with that which my noble and learned friend Lord Cooke quoted:
"Instead of the detailed and complex provisions which are contained in Chapter 2, what is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in the appropriate manner".
That is what I rely on for the justification that the clause should not stand part of the Bill.
I shall not reveal his age because that would be indelicate.
I listened with great care to the debate on the preceding group of amendments. I am not a lawyer, so I tread carefully. I listened carefully to the noble and learned Lord, Lord Cooke, on the weight of evidence and reliability rather than technicality, and to the noble Lord, Lord Carlile of Berriew, about whether it is codification or change. I also listened carefully to the Minister, whose case was based around the importance of certainty and consistency.
In our view, the provisions of Clause 107 as presently drafted make too great a shift in the delicate balance as regards the admissibility of hearsay evidence—from one in which the evidence is generally excluded, unless an exception to the rule applies, to one in which the evidence is ordinarily admitted unless certain safeguards are met; in other words, a shift from an exclusionary hearsay rule to an inclusionary one. In this, our debates have followed those which we had earlier today and on Monday on bad character.
That having been said, we accept that there is a need for reform to the present hearsay rules as suggested by many authoritative bodies, the Runciman Royal Commission and the Auld report. Since the publication of the draft of the Bill, several bodies have expressed concern over whether the provisions have been drafted too widely.
When replying to the previous debate the Minister quoted from Justice briefing. Perhaps I may quote back to her from that briefing. Justice said that,
"the breadth of this power is such that, far from simplifying the law (something we all agree is necessary), it will lead to even more uncertainty for lawyers and members of the public alike. It will not, we feel, reduce the amount of time spent on legal arguments relating to hearsay".
Our concern is therefore that the Government have initiated too extreme, too severe and too sudden a shift.
It is worth while the Committee remembering—particularly those of us who are not lawyers—that in criminal trials the defendant's liberty is at stake, so there is a need for an even greater vigilance to protect his or her rights. Relaxing the laws of evidence admissibility may accelerate court procedure in areas that are being unnecessarily bound up in red tape, but if this is at the expense of giving a defendant a trial that is unquestionably not a fair one, this cannot be an acceptable price. That point was made by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew.
Justice has laid out in helpful briefings the background to the historic tendency for the exclusion of hearsay evidence: first, that untruthful witnesses can more easily manufacture evidence and there is no reliable way of proving otherwise; secondly, that there is unlikely to be any satisfactory or fair way of testing whether the out-of-court statement maker was mistaken, or, for that matter, was worse than mistaken and was attempting to mislead. Thirdly, the evidence referred to is not given on oath and the out-of-court statement maker may not be prepared to repeat it on oath. Fourthly, there are human rights implications that must be considered.
The rule against hearsay evidence is recognised as an aspect of the right to a fair criminal trial by Article 6.3(d) of the European Convention on Human Rights. It states that everyone charged with a criminal offence has the right,
"to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
Obviously, if the admissibility of hearsay evidence were to be relaxed, as proposed in the Bill, such treatment of evidence would not be so closely adhered to.
Those points of clarity and the important need to bring to the court's attention the critical issues were highlighted by the noble Lord, Lord Thomas of Gresford, in the amendments that he moved. They seem to us to be sensible amendments which dot the "i"s and cross the "t"s of the Bill. While we do not believe that this clause as a whole should stand part of the Bill, we nevertheless support the amendments as they stand.
Apart from those issues, and the others which we have been discussing, we are also concerned that the Government have initiated this change without fully considering the implications of the relevant section of Lord Justice Auld's report, from which many of the changes have sprung. In paragraph 101 of chapter 11 of the report, which is entitled The Trial: Procedure and Evidence, Lord Justice Auld observes how the Law Commission considered that the "best available evidence principle"—that is the adduction of evidence based upon its weight rather than its admissibility; in other words, the use, inter alia, of hearsay evidence—is one that might suit an inquisitorial system like that in Germany but,
"it would not work in our adversarial system where the parties, not the tribunal, are responsible for seeking out and calling evidence".
But Lord Justice Auld, having posed the question, did not give an answer to it—nor, I fear, so far have the Government. Since Lord Justice Auld saw it appropriate to include this in his report, it is intriguing that the Government chose not to make it a consideration. Perhaps if they had reflected upon this important consideration, their proposals to relax the laws regarding hearsay would be appropriately better balanced. I shall be interested to see whether the Minister can enlighten us further today when she comes to reply.
In conclusion, I understand that the Government appreciate the sensitivities surrounding the admissibility of hearsay evidence, as the discussions in Committee in both Houses have shown. Words such as "considered", "potential" and "relevant" often appear when the Government discuss provisions on hearsay in this Bill. But these safeguards surely should not be there to weed out and identify the exceptions to hearsay that are not admissible. The emphasis should be to the contrary—safeguards should be there to identify hearsay evidence that should be admissible.
As I have said, the amendments tabled by the noble Lord, Lord Thomas of Gresford, certainly improve Clause 107. I hope he will agree that achieving an "improvement" on an issue that stands at the heart of our civil liberties is not sufficient. That is why I support the noble and learned Lord, Lord Ackner, in his opposition to the Question that in its present form Clause 107 shall stand part of the Bill.
I, too, add my many congratulations to the noble and learned Lord, Lord Ackner, on his birthday. It is a sad reflection that he has to spend it here with us. I hope he understands that the pleasure it gives us is considerable.
Clause 107 was ably dealt with by the noble and learned Lord, Lord Cooke, in his exposition of why change is necessary. I found that exposition enlightening and I could not possibly have expressed it as elegantly. For once, I had the advantage of listening confident in the knowledge that I did not have to respond immediately.
Clause 107 establishes a new primary rule for the admissibility of hearsay evidence in criminal trials. It allows all statements which were not made in oral evidence during the trial to be used as evidence of the facts stated within it provided that, first, the statement is admissible under the Bill or another statutory provision; secondly, that the statement is admissible under one of the common law rules preserved by the Bill; thirdly, that all the parties agree that it can go in; or, fourthly, that the court gives leave to admit the statement.
The current common law rule against the admission of hearsay evidence means that, in general, only a statement given by a witness orally in court proceedings is admissible as evidence of the facts which it contains. If evidence falls within the hearsay rule, it will be inadmissible unless an exception applies. We are changing the balance slightly.
However, the changes in the Bill will replace the current hearsay rule with a modern, comprehensive and intelligible legislative scheme. The scheme should reduce the incidence of legal argument concerning the exact boundaries of the hearsay rule and its exceptions. While it is accepted in the Bill that hearsay evidence is generally less satisfactory than first-hand oral evidence given in court, it is also recognised that there may be cases where that is not so and that, where hearsay evidence represents the best evidence, it should be admissible, subject to appropriate safeguards.
I was pleased that the noble and learned Lord, Lord Cooke, alighted upon the case of Kearley. That was a very clear example of why it is important that we have a change. I wish to echo what the noble and learned Lord said about the way that the courts have been reluctant to interfere in this area and re-constrain the exercise of the hearsay rule, even though it was created initially by the courts themselves. I believe that that was clearly indicated in the majority judgment given by the noble and learned Lord, Lord Bridge, in that case. Even in confirming what the law then was, he recognised that there was a real need for reform and that the ordinary man in the street would find it difficult to understand. Indeed, the noble and learned Lord, Lord Griffiths, in dissenting in that case, said:
"In my view the criminal law of evidence should be developed along common sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence"— your Lordships will remember the facts of that case—
"as we are debating in this appeal would reply 'Then the law is an ass'".
We want to do all that we can to give the matter clarity. I see the attraction of what the noble and learned Lord, Lord Cooke, said in relation to simplicity and, indeed, what the noble and learned Lord the Lord Chief Justice said in his comments contained in the letter which we now have the advantage of having in the Library.
Simplicity may be attractive and the benefits of that simpler approach are obvious, but we must also consider the disadvantages. Those include the problems for practitioners in basing a scheme entirely on judicial discretion, the uncertainty surrounding the admissibility of the evidence and the particular difficulty which the lower court would have in dealing with this issue. The Law Society, for example, believes that such an approach would create hurdles in the operation of the court system, and the Crown Prosecution Service believes that such a rule would be even more difficult to understand and even less certain in its practical operation. I believe that the Bar Council also rejected it on the grounds that any new scheme must replace the present uncertainties with fewer, not more, uncertainties. That is why we have tried to structure Clause 107 with an eye to a deal of precision, which at least gives the court and practitioners the framework in an understandable, intelligible way in order to implement it.
Clause 107 also provides the court with an additional discretion to admit out-of-court statements if, despite the difficulties that there may be in challenging the statement, it is,
"not . . . contrary to the interests of justice", to do so. The idea, therefore, is that the court should be able to admit an out-of-court statement where it is cogent and reliable. This also aims to ensure that defendants can present all evidence vital to their defence and receive a fair trial. Some guidance is included at subsection (2) on what factors the court should consider when deciding this issue. Those factors are intended to focus attention on whether the circumstances surrounding the making of an out-of-court statement indicate that it can be treated as reliable enough to admit the evidence, despite the fact that it will not be subject to cross-examination. That discretion would operate for both the defence and the prosecution. In summary, we believe that Clause 107 will provide a structured and simplified approach to the admissibility of hearsay evidence.
I was asked why we have crafted the Bill slightly differently from the way proposed by the Law Commission. Clause 107, like the other provisions in Chapter 2 of Part 11, draws substantially on the work of the Law Commission in its 1997 report on hearsay evidence, but it does not follow it slavishly. The commission proposed that the general rule against hearsay be maintained subject to specified exceptions. The commission also proposed that there be a residual inclusionary discretion to admit first-hand and multiple hearsay evidence.
However, the Government have since reconsidered what form the primary rule should take in the light of Sir Robin Auld's recommendation that hearsay should be generally admissible, subject to the principle of best evidence. We have concluded that there are advantages in expressing the hearsay rule in a positive way, whereby all relevant hearsay is potentially admissible unless there are good reasons for excluding it. That approach reflects our desire to allow fact-finders greater access to cogent and relevant evidence in their search for the truth. It is also consistent with the Law Commission's proposal that hearsay evidence should be admitted if the interests of justice require it. The judicial discretion referred to by the noble Lord, Lord Carlile, is preserved within this section because Clause 107 acts to avert any possible injustice by allowing a court to admit cogent and reliable hearsay statements, even if they do not fall within any of the categories of admissibility provided by the Bill. We would argue that that is a very fair and just test. With those comments, I hope that noble Lords will feel able to be content that Clause 107 should stand part of the Bill.
I had hoped that my anniversary would pass without being noted because I am bound to say that as the years roll by I find it increasingly difficult to measure up to my sobriquet, "Number One Trouble Maker", but I do try.
The ground has been very fully covered on this subject. In order to make my anniversary more pleasurable to recollect, I do not think I need do more than to invite your Lordships to enter the Not-Content Lobby in order to get rid of this clause.
The problem with Clause 108 appears in subsection (2) where it delineates a statement as a,
"representation of fact or opinion made by a person by whatever means".
It says not "expert opinion" but "opinion". Effectively, anyone's hearsay opinion is being permitted. For example, hearsay opinion might be admissible under these provisions in an identification, such as, "I didn't see the man who robbed me but Mrs A told me she thought it was X", or "Mrs A said that in her opinion, knowing X, only X could have committed this robbery".
Such opinions clearly would not be admissible as oral evidence in the proceedings because opinion evidence is not generally admissible unless it is given by an expert on the basis of his or her professional expertise. The purpose of Amendment No. 153, therefore, is to make it absolutely clear that a statement of opinion can be admissible only under the hearsay provisions if the opinion would have been admissible as oral evidence in the proceedings. I think that its purport is extremely clear. I beg to move.
Although the hearsay rule and the rule in relation to evidence of opinion originate from the same principle that in general witnesses may only give evidence of facts of which they have personal knowledge, it is important to remember that the two rules are distinct, even though the same piece of evidence might require both rules to be examined.
Neither Chapter 2 nor the rest of the Bill for that matter is intended to affect the common law rule in criminal trials which, subject to limited exceptions, prevents witnesses expressing their opinions about what happened or may have happened in the case. Under the rule, the opinions of witnesses are inadmissible, unless they fall within an exception, such as where the court needs expert help in deciding an issue, or where it is genuinely impossible for an ordinary witness to tell his story in any other way.
Nothing in this Bill will alter that position. If an out-of-court statement contains opinion evidence, that part of the statement will not be admissible unless it falls within one of the exceptions to the general rule against opinion evidence. To ensure that there are no unintended consequences, Clause 107(3) explicitly states that nothing in this chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. So we would respectfully suggest to the noble Lord, Lord Thomas of Gresford, that no clarification would seem necessary.
It is right to say that in another place concern was expressed as to why it was necessary to refer to "opinion" within Clause 108(2) if nothing in the Bill was intended to alter the common law position on evidence. I think that is the import of much of what the noble Lord, Lord Thomas of Gresford, said today.
I hope that I have explained that there are occasions when common law permits opinion evidence to be admissible. We need to ensure that admissible opinion evidence is not excluded from the hearsay provisions of Chapter 2, bearing in mind that that is somewhat difficult because we have had a clause stand part debate on Clause 107.
Of course, Clause 107 no longer stands part of the Bill. I am assured by the noble Baroness that opinion evidence is not to be treated any differently under the Bill than it is in common law. If something like Clause 107 were reinstated, it might play a further part in our considerations. I beg leave to withdraw the amendment.
I notice that the noble and learned Lord, Lord Ackner, has put his name down to omit this clause. I feel bound if I may to move that. It is extraordinary. Imagine criminal proceedings in which a cartoon—even one in The Times—could be quoted as a way of exposing truth. So many cartoons are a diversion from the truth and the idea that they could be admitted in a criminal case as a sketch—because that is what cartoons are—could lead to the most extraordinary results. I hope that the Government will reconsider this clause altogether. It is utter nonsense.
I hear what the noble Lord, Lord Renton, says. We think that Clause 108 is sound. It defines the type of statements that will be covered by the new scheme. According to subsection (3), the rule will apply only if it is the purpose of the person making the statement to cause someone to believe the matter stated is true or to act on the basis that it is true. The common law rule was much wider than this and excluded statements or conduct from which a relevant fact could be inferred, although the maker did not intend to communicate that fact. The rule has caused much confusion and injustice in borderline cases, known to lawyers as implied assertions. We think that the clause is well founded.
On the issue raised by the noble Lord, Lord Renton, we do not think that this matter will engage the court in any difficulty in relation to criminal cases.
The problem that arises under Clause 109 is the extension of the concept of fear as a reason for a witness not giving evidence in court to fear of "financial loss". We are well used to situations in which evidence is brought before the court—before the judge in the absence of the jury, or before the magistrates—of a witness who is too afraid to come to court. Usually, it is obvious from the nature of the proceedings why that fear has arisen—perhaps it is a rape case, or the witness has been attacked or there is evidence of threats having been issued against a particular witness.
However, were a person saying, "I'm not coming to court to give evidence orally because I'm afraid of losing money", to be the basis for the statement to be admitted takes the matter too far. I refer your Lordships to subsection (3) which says:
"For the purposes of subsection (2)(e) 'fear' is to be widely construed and . . . includes fear of the death or injury of another person or of financial loss".
That is unacceptable. Fear of financial loss ought not to be a proper reason for reading the statements of witnesses as opposed to having them give evidence orally and it is in those circumstances we have lodged these amendments. First, we wish to ensure that steps have reasonably been taken to address the fear before that can be the basis of an application to read a statement. Secondly, we wish to leave out that enormous widening of the concept of fear and, finally, we wish to insert that,
"in appropriate cases, leave may be given . . . having regard to the fact that", a special measures direction could be made in relation to the relevant person. Increasingly, screens are creeping into courts. They are obviously good where there is a vulnerable witness. However, very often, in certain circumstances, they appear to be taken advantage of. Not long ago, screens were required in the case of an alleged murder some 30 years previously. One would have thought that the witness's fear was of giving evidence—it is never a pleasant thing to do anyway—and not of any consequences to himself. I beg to move.
The purpose of Clause 109 is to provide for the use in evidence of a witness's out-of-court statement, with the leave of the court, where that witness is too frightened to testify, or to continue testifying. The important element is the leave of the court. The court will have an opportunity to determine whether the reasons put forward by, and on behalf of, the party who seeks such leave are found to be capable of falling within the type of reason that would deny the court the advantage and privilege of having live evidence before it.
Leave can be given only in circumstances where to do so is in the interests of justice. It replaces existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. This provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court, where appropriate.
The list outlining the species of issues capable of causing fear, to which the noble Lord referred, are simply examples rather than an exhaustive list. Any of those issues would be subject to the court applying the interests of justice test.
Amendment No. 153A proposes that leave can be granted to admit a statement of a frightened witness only where such steps as may reasonably be taken to address the fear have been taken. We understand why the noble Lord should raise that as a concern, but witnesses in such positions are now increasingly concerned by a wide variety of issues.
The noble Lord, Lord Thomas of Gresford, mentioned the use of screens. He knows that they are often used for vulnerable children, rape victims and others who have been genuinely terrified and would find it almost intolerable to be in the same room as the alleged assailant. In an effort to make witnesses feel more confident, we have also taken advantage of the use of video-link facilities and other opportunities. Those issues will be in the court's mind when deciding whether the interests of justice are served by an agreement that evidence can be led as opposed to taking advantage of all the other opportunities, such as screens, video-link evidence or otherwise, in determining the application.
We recognise that the problem of reluctant witnesses is serious, and that much more needs to be done to ensure that courts receive the best possible evidence. As the noble Lord knows, there is a difference between a witness who is reluctant and one who is genuinely fearful. As part of our wider programme to improve the treatment of vulnerable and intimidated witnesses, we are piloting new witness care arrangements in eight areas: West Mercia, Warwickshire, London, South Yorkshire, Essex, Gwent, North Wales—I am sure that that will give the noble Lord, Lord Carlile, a modicum of pleasure—and the West Midlands. That will result in much earlier and more accurate identification of witnesses who may be subject to intimidation, or who feel that they may be at risk.
I am grateful to the noble Baroness. It gives me much pleasure to hear mention of North Wales. I understand that the Question whether Clause 109 stand part is in this group. In that respect, I ask: what do the words,
"is to be widely construed", add to the clause? Is there a statutory precedent for the use of those words or are the Government trying to introduce an amended canon for judicial construction of the clause?
One of the difficulties about the issue of fear, as the noble Lord will know, is that there are many witnesses who will experience genuine fear, but the cause of that fear may differ. The court has to identify whether the fear is real, whether it is pertinent, or whether it would prevent the person from appearing, as opposed to necessarily being restrictive about the source from which that fear would spring. I cannot tell Members of the Committee whether this phraseology has been used in other legislation—not least, because I have had about one and a half hours' sleep. Currently, I cannot bring any to mind, but I can certainly write to the noble Lord about this issue if I find any such example.
I hope that I have been able to reassure noble Lords. All the pilots about which I spoke are exploring a one-stop approach, with better communication and information, better risk management and better individual case management of witnesses who may need additional support to get to court and to give best evidence. In relation to that, too, I shall be happy to write to the noble Lords, Lord Thomas of Gresford and Lord Carlile, if further information is sought.
Notwithstanding that we shall continue to do all we can to support witnesses so that they feel able to give live evidence, we also understand that there is a real issue for those who are fearful, whether by intimidation or any other reason, and are unable to do so. We want the evidence to be available to the court if it believes that, in the interests of justice, it is necessary to admit it in this way.
Clause 109 does not attempt to provide an exhaustive definition of what may constitute a sufficient basis of fear. Instead, as the noble Lord, Lord Carlile, said, Clause 109(3) states that fear should be interpreted widely. That is the reason. It is drafted in the terms used in the Law Commission's draft Bill and seeks to achieve a compromise between, on the one hand, the difficulty of setting in legislation a comprehensive list of the circumstances in which fear justifies the reception of a hearsay statement and, on the other hand, the danger that in the absence of any definition, a court might hold that a particular kind of fear is not what Parliament meant.
Amendment No. 153B seeks to remove this interpretation, which we do not think is helpful. We believe that it is a helpful guide to the courts as to what may be considered as constituting a "fear" for the purpose of this provision. If the reference was removed, it would mean that the courts might consider that fear of injury to others or financial loss was not what was intended to be covered by Parliament under the scope of fear. That would be undesirable. It is really for the courts to determine whether the quality of fear experienced by the witness is such as to make the interests of justice weigh in favour of allowing this evidence in written form, as opposed to permitting it in a live form. Therefore, the ambit of this clause enables the interests of justice to be better served.
This is a question of quantum and nature. One would have to balance the fear of financial loss against the interests of justice. If, for example, someone said, "I don't want to come to court because I shall lose an hour or two's worth of extra money", that is one thing. However, if the witness is out of the jurisdiction and would lose all forms of gainful employment because he happened to operate in a narrow sphere, and if he were able to convince all concerned that his work was something that he would be incapable of replacing and would be bound to bring about a form of nervous psychosis, that is quite another matter.
We have a very broad spectrum. It is for the court to exercise good sense and judgment and to consider whether the reasons given by the witness are such that it believes that the interests of justice demand that the evidence should properly be admitted. I know that from his long experience, not least as a former Lord Chancellor, the noble and learned Lord will know how carefully and jealously the judges of England and Wales and, I dare say, Scotland as well, will guard the necessity for the interests of justice to be preserved. We think that the phrase gives them the flexibility to so determine. It has been included simply so that it is not a species which is automatically excluded from the court's consideration. Whether it is persuasive will depend on the facts of the case.
I have to say that I am completely dissatisfied with the explanation of why the fear of financial loss should make it possible for the prosecution to read a statement in a criminal case where the liberty of the subject is involved. The kinds of circumstances referred to by the noble Baroness seem unlikely to occur at that level.
May I suggest that a pilot scheme covering fear of financial loss is also run in Ceredigion, in addition to those set up in North Wales and Gwent? We might receive some examples from that part of the world which would assist us more. I am afraid that only my noble friend Lord Carlile will understand the significance of that remark.
We shall come back to this matter because it is important. However, for the moment I beg leave to withdraw the amendment.
moved Amendment No. 155:
Page 74, line 4, leave out from "deceased")" to end and insert "only a statement by a person to whom the original statement was made is capable of admission in criminal proceedings as evidence of a matter stated in the original statement (so that a statement by B, but not A, may be admitted as evidence of the fact that C shot the deceased)"
I beg to move Amendment No. 155 and to speak at the same time to the Question whether Clause 114 shall stand part of the Bill. Clause 114 takes us into a still more delicate set of issues, this time concerning the admissibility of multiple hearsay. I shall speak both to the amendment and to the Question whether the clause shall stand part because, as noble Lords will appreciate, the issues are closely intertwined. Although this is an important and serious matter, I shall speak briefly because many of the concerns and issues were raised in our debate on Clause 107 stand part, which concerned single hearsay.
As I have said before, we agree with the recommendations of the General Council of the Bar and the Criminal Bar Association and we welcome attempts to codify the complex rules of hearsay. However, I am afraid that we cannot support the Government's proposals in Clause 114 for the inclusion of multiple hearsay in this Bill.
Multiple hearsay concerns not only one statement not made in oral evidence but a series of statements. Therefore all the reservations and concerns that we have in regard to the inclusion of hearsay, which were raised in the debate on Clause 107 stand part, are multiplied and reinforced in regard to the provisions of Clause 114.
Amendment No. 155 seeks to limit potentially flawed evidence which we believe would cause inconsistencies and unfairness in a trial if the clause were allowed to pass unamended. I shall not repeat the detail of my arguments on Clause 107 stand part. I shall confine myself to pointing out that any hearsay may be inaccurate or mistaken; it is easily manufactured; it is difficult to challenge; it is difficult for a jury to test; and it cannot be tested on oath as the maker of the statement will not be standing before the court to give direct oral evidence. If we are concerned about hearsay, how much more should we be concerned about multiple hearsay?
The Joint Committee on Human Rights raised the point—it was also raised by Justice—that the Bill does not expressly prevent a person being convicted on the basis of hearsay or multiple hearsay alone. It concluded that there was a significant risk that,
"the provisions as currently drafted would lead to violations of the right to a fair trial under ECHR Article 6.1 and 6.3(d), a fair trial provision which provides the right to examine witnesses called against the accused".
The Criminal Bar Association has highlighted the case of Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea. It states that cases such as Unterpertinger v Austria, Kostovski v Netherlands and Saidi v France illustrate the reluctance of the Strasbourg court to accept that the use of hearsay evidence is compatible with a defendant's right under Article 6.3(d) to examine, or to have examined, witnesses against him.
If we have to accept the introduction of the use of potentially unreliable evidence into our court system, we firmly believe that it should be first-hand hearsay only. It should not be extended to what could come down to, in my non-legal words, a series of Chinese whispers—"He overheard a conversation in which he heard A say that he had heard B boasting about killing C". Could or should such statements have a place in our judicial system? I beg to move.
As we have voted against Clause 107, Clause 114 becomes largely irrelevant. But I am sure that my noble friend is justified in moving his amendment because, alas, there is a reference in subsection (1) of the clause to Clauses 109 to 113, which we have left in the Bill.
However, now that Clause 107 has been ruled out of the Bill, I would expect the Government to consider whether Clause 114 makes any sense at all. If they decide that it should be left in the Bill for some purely technical reason—which I would find surprising—perhaps the amendment moved by my noble friend is fully justified.
I will therefore confine my remarks to Amendment No. 155. I should make clear that the Government very much share the concern of noble Lords about the genuine risks involved with multiple hearsay and the danger that unreliable or manufactured evidence might go in if there are not adequate safeguards in the Bill. Amendment No. 155 would prevent multiple hearsay from ever being used in our criminal courts. While I appreciate the concerns that have prompted the amendment, we believe that it would set the hearsay clock back too far and that it is over-prescriptive in preventing the courts considering reliable evidence.
Currently, multiple hearsay is prima facie admissible in business documents in England and Wales under Section 24(2) of the Criminal Justice Act 1988, provided that each person in the chain has received the information in the course of a trade, business or profession. Many of these documents, as noble Lords will know well, will have passed through the hands of several people. However, as each business document is inherently reliable, there is no substantially increased risk of error or fabrication at each stage. Therefore, it is right that such evidence should be admissible.
The effect of the amendment is that the courts would be prevented from considering routine business documents which everyone accepts are properly admissible in criminal cases and which the Law Commission concluded worked well and without injustice. I am therefore bound to resist the amendment.
Clause 114 is an important safeguard in addressing dangers posed by multiple hearsay. It seeks to establish the general principle, subject to limited exceptions, that if a witness is unavailable to testify, their written statement cannot be used to prove other admissible hearsay evidence. This would prevent the admission of hearsay within hearsay unless the earlier statement can be proved by an inherently more reliable form of hearsay statement such as a business document or where the multiple hearsay is of such exceptional probative value that the court is able to exercise its discretion to admit a series of statements in the interests of justice under Clause 107(1)(d), as it then was. I am responding to the comments in this way because while I appreciate the provision has gone, it is important to understand how we saw this fitting in.
We recognise that this is a complex area where some common law jurisdictions have taken a more liberal approach to the automatic admission of multiple hearsay than is proposed in the Bill. The formulation of the rule in Clause 114 follows the approach taken by the Law Commission in its draft Bill. We believe that such a safeguard against multiple hearsay is necessary. It serves to differentiate the exceptional circumstances in which it may be appropriate to admit multiple hearsay from those where the risks would be too great. I hope that with that explanation, the noble Lord, Lord Hodgson, will feel content to withdraw his amendment.
I thank my noble friend Lord Renton for his support for these amendments and the noble Baroness for her explanation of the Government's thinking. She remains remarkably lucid, even on an hour and a half's sleep.
The core of our concern is that we are moving from reliable hearsay, which we can get our minds around, to reliable multiple hearsay. That having been said, the Minister made two very valid points. She referred to the issue of routine business documents being excluded and the safeguards that have been built in to the Bill. We would like a chance to read what she said and consider it further. In the meantime, I beg leave to withdraw the amendment.
It seems to me abundantly plain from the discussion we have just had and the decision to strike out Clause 107 from the Bill that the Government really should consider not only the drafting of this clause, which has two references to Clause 107, but its content, which is dependent upon Clause 107 to a great extent. It is irrelevant and unnecessary and, I suggest, undesirable. It could lead to injustice. I do not know whether my noble friend has decided to move that Clause 114 be left out, but I hope that the Government will seriously consider doing so between now and Report.
We come to the general discretion of the court to exclude evidence. This clause ensures that in every case where hearsay evidence is introduced there will be a double application: the first under the relevant clause—whether one to replace Clause 107, Clause 114 or whatever—and the second under Clause 119. The clause introduces the interesting concept that a court,
"may refuse to admit a statement as evidence of the matter stated if . . . the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it".
Undue waste of time? That strikes at the root of the criminal justice system. Undue waste of time is a difficult concept to define. What is undue and what is a waste of time, when we are considering the liberty of the subject?
However, our amendment is to subsection (2). The Explanatory Notes state:
"Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence".
All that we seek to do through the amendment is to write into the Bill the words in the Explanatory Notes. I do not understand how the Government can object to that, although we should probably be satisfied if the noble Baroness would make it absolutely clear that the power of the court to exclude evidence where its prejudicial effect outweighs its probative value is maintained and that it relates to every other provision in this chapter dealing with hearsay evidence. I beg to move.
Clause 119 indeed provides the court with a general discretion to exclude an out of court statement, if it is satisfied that the statement's probative value is substantially outweighed by the danger that admitting it would result in undue waste of time. It will enable the court to exclude superfluous hearsay evidence.
The Law Commission took the view that it was important to provide the courts with some power to control the quantity and quality of out of court statements that are adduced. Evidence that is wholly irrelevant is not admissible at all—nor should it be—but out of court statements that have marginal relevance to the issues will be prima facie admissible, providing that they meet the criteria in Clause 103. The commission was concerned that in some cases that evidence will be superfluous to the issues and highlighted the risk that the parties might seek to use every conceivable piece of evidence, no matter how marginal its value, to bolster their case. We agree with the commission's conclusion that an exclusionary discretion is necessary to ensure that court time is not wasted and to address concerns that the greater admission of hearsay will lead to barely relevant evidence being adduced. Of course, the evidence that the prosecution seeks to adduce may still be excluded by the court in the exercise of its discretion at common law or under Section 78(1) of PACE. However, that would not provide a means of controlling the quantity and quality of evidence that would be used by the defence.
Clause 119(1)(b) will therefore enable the court to exclude superfluous hearsay statements from any party if it is satisfied that the value of the evidence is substantially outweighed by the undue waste of time that its admission would cause. I hope that the noble Lord will feel content with that full explanation.
Amendment No. 160 would insert wording that would make it clear that the common law discretion continues to apply to evidence admissible under this part. I can offer the assurance that that is indeed the case, and is achieved by Clause 119(2)(b). I hope that will be of use to the noble Lord and practitioners.
I have said it. I said that Clause 119 provides the court with the general discretion to exclude an out-of-court statement if it is satisfied that the statement's probative value is substantially outweighed by,
"the danger that to admit it would result in undue waste of time".
I have already said that probative value as defined in Section 78 includes prejudicial value.
It is widely believed that the Government's intention behind the Bill is to make it easier to convict criminals. The Minister is aware that we on these Benches have considerable problems with a few of the ways in which they are trying to do that. However, without this amendment, the Bill could fail to provide effective protection for blind, partially sighted and other disabled people against harassment and assault inspired by disability prejudice, hatred and crime more generally.
With one in four disabled people having been subject to harassment on grounds of disability, rising to nine in 10 people with learning disabilities, the need for action is urgent. Under other later amendments, we shall consider the penalties relating to a hate element in an offence against a person with a disability.
The amendment relates to the ability of blind and partially sighted people to participate in obtaining justice, as can all other citizens, by using that sense that for many of them is particularly acute—the sense of hearing. We seek to include in the Bill the words,
"Where a victim or witness is unable, due to visual impairment, to identify a suspect visually, an auditory identity parade may be used".
Why is this amendment necessary? The RNIB, Guide Dogs for the Blind Association and NACRO have anecdotal evidence of police not always taking reports of crimes by visually impaired people seriously because the victims could not identify their assailant by sight. Assailants, of course, may be counting on that and may even target blind and partially sighted people on that basis. However, in some cases it might be possible for a visually impaired person to identify their assailant by the sound of their voice. If that were to happen, criminals would face an added deterrent and the partially sighted person could participate in justice in the same way as fully sighted people.
The evidence suggests that that is possible. Voice identity parades are already used in Holland. The first ever conviction for murder in the United Kingdom based on a voice identity parade was secured at the Old Bailey in December 2002. Assad Khan and Didar Bains were convicted after the witness, Raymond Sarong, identified Khan's voice in an auditory identity parade. A linguistics expert from Cambridge University was used to make sure that the process was sound. Detective Sergeant McFarlane was commended by the judge for his work. Speaking after the case, DS McFarlane said that he would be recommending the technique to the National Crime Faculty. Following that, the Metropolitan Police are drawing up their own guidelines for the use of voice identity parades in consultation with the RNIB.
"I am firmly of the view that voice recognition is feasible and I have asked my officials and scientific advisors to reconsider this area urgently to see what steps we can take to further encourage the use of voice recognition by police and criminal justice agencies".
Those words were a most welcome step forward. However, I wonder whether the Minister can give us an update on the progress of this issue and perhaps reassure us that this wholly reasonable addition to the toolkit of evidence available to the police will be available for use in the future. I beg to move.
I have put my name to this amendment, which of course I support. I think that both the noble Baroness, Lady Walmsley, and I are hoping that the Minister will tell us that the amendment is not required not only because there is already permission for an auditory identity parade to take place, but because it will in future be used more frequently. The noble Baroness has already referred to the Khan and Bains case where a conviction was secured. Could the Minister say whether her understanding accords with mine—that such auditory identity parades are very infrequently used, and that there is perhaps a resistance to their use by the police or an uncertainty about how to proceed with them? Could the Minister tell us whether the Government are doing anything to encourage the further use of such identity parades where it is proper so to do?
The noble Baroness, Lady Walmsley, quoted from the words in another place of the Home Secretary who directed his officials urgently to review this matter. That was back in May. As the word "urgent" was used, one would think that something might have happened since then. I hope that we will learn that use of the word "urgent" by this Government means that something has happened since May.
Before my noble friend replies to this important amendment, I think that there is a point that the noble Baroness, Lady Walmsley, did not address. I am not sure that I heard the noble Baroness, Lady Anelay, aright, but I think that she did address it.
In my view, it is highly important that the word "may" does not become "will". It is important that this provision should be used only in certain very limited circumstances. It can be used at the present time. That is a point which the noble Baroness, Lady Walmsley, did not address.
In my view, while an auditory identity parade should be available, it should be used only in the rarest of cases. There is a danger that people who are subject to that kind of parade can all too easily be wrongly identified. We should not allow our natural emotions to be besmirched by that possibility.
I cannot recall in my professional career an instance of such an auditory identity parade. No doubt there have been one or two cases but they are a minority. A special warning to the jury from the trial judge is appropriate in those circumstances. I do not oppose the idea at all but we have to be very careful about its use. I hope that my noble friend will concur on the matter.
I say straight away that I understand the concerns raised by my noble friend Lord Clinton-Davis. I hope that in replying to the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, I shall be able to quieten my noble friend's concerns.
I absolutely understand that the amendment put forward is not proposed to be acted upon but simply to be a means through which we can discuss the matter. The noble Baronesses will be aware that the amendment contains a number of flaws with which I need not trouble the Committee.
The noble Baroness, Lady Anelay, was absolutely right to say that auditory identity parades already exist. They appear to be a very good idea. The noble Baroness, Lady Walmsley, gave a specific example of where such a parade had worked well. The importance of that case is that some very careful and precise steps were taken to ensure that the validity of that identification could be assured. That was what was so interesting and commendable about the work that was done in that case.
PACE Code of Practice D deals with the procedures for identifying persons by police officers and allows the use of auditory identity parades where the police judge them appropriate. As the noble Baroness, Lady Anelay, said, auditory identity parades are not used frequently. We are currently involved in ongoing work to make voice identification procedures more effective and develop their use as an investigative tool. If necessary, amendments to PACE Code D can be made in the future.
As drafted at the moment, the proposed new clause in Amendment No. 160B would preclude those who have normal vision but are unable to see temporarily—for example, if their head is covered—from taking part in auditory parades. That seems an unnecessary restriction on the use of such parades. We are trying to look at the quality of the means by which such identification can be perfected as opposed to its being solely available to those who are either partially sighted or do not have sight at all.
The noble Baroness presses on the timing and how much has been done. We appreciate the sentiment in the amendment. For the reasons that I have given, we resist it, but we accept that the matter needs to be looked at more quickly. I am not able to confirm the time when the work will be concluded, but I can tell her that the matter is being energetically pursued at the moment. My right honourable friend the Home Secretary is seized of it and has expressed acute interest in it. I assure her that the spotlight on the issue has not gone away at all. It is being pursued as quickly as possible.
If I have more news on where we are by Report, I will be happy to give it. I cannot say that it will be quite as good as the noble Baroness would like, but you never know.
The Minister mentioned that the police already had discretion in the matter. Would she suggest to the police, perhaps through the Home Office, that, where the witness has either lost his sight or could not see on that occasion but recalls particular words having been used, the suspect might be asked to repeat those words so as to obtain an identification?
I can quite see why the noble Lord would make that suggestion. In the case referred to by the noble Baroness, Lady Walmsley, a procedure was adopted by the police that might provide an exemplar of how the matter could be dealt with in future. Best practice to get the best quality of evidence before the court in a more consistent way is one issue being looked at. I take on board what the noble Lord said.
I thank the Minister for her explanation and do not intend to keep her from her well-earned rest very long. I welcome her confirmation that the Government are committed to the idea and her explanation of how the detail of the process is being looked into. The noble Baroness, Lady Anelay, and I, and the organisations that have briefed us would be most grateful for any progress reports she finds herself able to give us. It is particularly important that people with disabilities are given every opportunity to participate in justice. We are all behind that. I beg leave to withdraw the amendment.