My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
My Lords, in moving Amendment No. 144, I shall speak also to the other amendments standing in the name of my noble friend Lady Scotland of Asthal—Amendments Nos. 145 to 154. Also in this grouping is Amendment No. 155, standing in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia.
Schedule 4 to the Bill, to which the amendments relate, contains the list of offences that the Government presented as those most suitable for the new retrial procedures. Opposition to this part of the Bill has focused on three points: first, some have criticised the schedule for being too extensive; secondly, some thought that the list did not comprise the most serious crimes; and, thirdly, others in another place argued that some of the crimes were high volume and that, instead of the retrial procedures being used in exceptional circumstances, retrial would therefore be used as a matter of routine.
The Government have listened carefully to the criticisms levelled at Schedule 4 in both Houses. What comprises the most serious offences remains a matter of judgment, but I believe that the retrial procedure should apply to offences other than murder, soliciting murder and genocide alone, as was proposed by the Opposition.
Having said that and having looked again at this matter, we believe there is scope to reduce the number of offences that should qualify for the retrial provisions. Therefore, we are proposing a number of amendments which will help to focus the list on the gravest offences and remove those which are not of the highest order of seriousness but are relatively high-volume offences—for example, causing grievous bodily harm.
I should point out that, although we have deleted a number of offences, the list overall does not look shorter. However, that is because we need to include in the schedule the new sex offences which are regarded as of equivalent seriousness to rape or attempted rape under the new Sexual Offences Bill. Because those offences are brigaded under heads, they seem to go up in number but they are equivalent in terms of seriousness. I hope that the amendments will allay the fears of noble Lords who have expressed concerns about this part of the retrial provisions.
With your Lordships' leave, I shall wait to hear what the noble Lord, Lord Thomas, says about Amendment No. 155 and then respond. I beg to move.
My Lords, your Lordships will recall that on the previous day on Report I said that, in considering whether a retrial should be permitted, it is necessary to strike a balance between the rights of the victim, the rights of an acquitted defendant, the resources available to the justice process and the resources available to the investigation by the police.
I conceded from these Benches that we were prepared to accept that the ancient double-jeopardy rule should be invaded to a very limited and narrow degree. Indeed, it is interesting that in the reign of Henry VII, despite the double-jeopardy rule, which was then part of the common law, an Act expressly permitted a second trial by appeal following an acquittal on an indictment for homicide only. The Act was motivated, so it was said, by,
"The King remembering how Murders and slaying of his Subjects daily do increase in this Land . . . and thereby great Boldness is given to Slayers and Murderers".
That appeal procedure—the second trial—was abolished in 1819. Therefore it lasted for some time, but only in respect of murders.
We on these Benches have taken the view that the Government's approach introduces into the schedule far too many offences which would be subject to the retrial procedure. If one looks for balance, as I outlined it, one is driven back to consider which cases really cause public disquiet. In any event, the whole purpose of introducing these provisions is to deal with public disquiet. The cases which have attracted publicity in the past are, without exception to my knowledge, cases of murder or homicide. It is those cases where acquitted defendants have, in very rare instances, gone on record as saying, "I have been acquitted. I cannot be prosecuted again, and I did it". It is in those cases, where there is a feeling that the police investigation has not been thorough enough or that people have been wrongly acquitted, that public disquiet arises.
I have said to your Lordships on many occasions that the whole basis of the criminal justice system rests not with lawyers or judges but with the people. If the people do not have confidence in the justice system for one reason or another, injustice will occur because witnesses will not come forward and jurors will not convict in appropriate cases. Therefore, where there is a degree of disquiet, as happens when a person is acquitted of murder and then confesses to having committed the crime, we concede that the double-jeopardy principle should be breached.
We oppose the amendments put forward by the Government and we oppose the scope of Schedule 4 as originally drafted. I suppose one can say that at least the amendments cut down the size of the list. But we cannot see that it is in the public interest that cases listed in Schedule 4, even as amended, should be the subject of the use of resources in the judicial process and police investigations and that they should breach the principle of finality about which we said so much on the previous occasion.
If there is to be an exception, it should be as the Law Commission decided after considerable thought in its report, Double Jeopardy and Prosecution Appeals, Cmnd. 5048, published in 2001 and presented to Parliament in March 2001. We take a principled stand on the basis of what is recommended in that report, and we believe that the Government have not justified going beyond the Law Commission's views.
My Lords, it may be for the convenience of the House if I speak at this juncture to put on the record clearly the position of these Benches rather than wait until the end of what I am sure will be a detailed and interesting debate.
I made it clear in Committee that I believed it was vital to provide safeguards for the rules on relaxing double jeopardy. I now believe that the amendments put forward in this group by the Government go a long way towards achieving just that. It is true that only time and events will prove whether they go far enough, but I am prepared to accept them today.
Throughout, our view has been that retrial should be limited. If it is to happen at all, it should be limited to very serious offences. From a purely practical point of view it is essential that the police and the prosecution service should be given the opportunity to demonstrate that the new proposals work fairly and effectively before we roll out the relaxation of double jeopardy as widely as the Government intended in their first list of offences.
I have looked closely at the list now proposed by the Government. I am grateful to the noble and learned Lord the Attorney-General for meeting with me during the September sitting to discuss how to achieve some agreement on these issues. We both gave a little in what has to be a compromise.
The noble and learned Lord was also kind enough to ensure that I had the opportunity to speak—individually in all but one case—to my own Back-Bench Bill team, most of whom, if not all, are here today. Also at the Bill team meeting held as preparation for Report stage I was able to explain the objectives of the government amendments and not one of the team put forward objections to the proposals that the noble and learned Lord puts forward today.
From speeches made from the Benches behind me last week, the noble and learned Lord will be aware that several of my noble friends remain deeply concerned about the principle of retrial being available. We on the Front Bench have accepted that in certain limited terms it will be available. I know that the purists among us on the Back Benches would have been happier if the Government had not brought forward this part at all.
On the amendments relating to safeguards and restricting the list in the schedule, I have not yet received from any on my team any objections to the government amendments. I now accept that the Government's new schedule would cover the most serious offences, including those most commonly associated with international crime and terrorism. I accept that it vastly reduces the number of acquitted persons who may face the possibility of a retrial. I estimate the reduction, taking the annual figure, to be about 65 per cent. Despite all that, we have to take note that it will be vital for the Director of Public Prosecutions and the police to consider very carefully in each and every case whether it would be right, safe or appropriate to seek a retrial and if they determine to proceed, to ensure that the process is carried out with the utmost care and reliability.
The fact remains that the Government and the police have already raised the hopes of victims and the relatives of victims with the promise of this new power. It must not be used incautiously or unfairly. Both the innocent accused—there will remain innocent accused who may be caught by this—and the victim would, thereby, suffer even more than they do now. We must avoid that. In the mean time, I support the amendments and in so doing that will reduce the amount of time that I shall need to trouble your Lordships in speaking to later groups of amendments.
My Lords, I support the principle of doing away with the double-jeopardy rule. The defence has always had the right to obtain a new trial on the basis of fresh evidence that was not available at the time of the original trial, so if the prosecution has genuine new evidence, equally it should have the right to apply for a retrial. It is vital that such a measure should be used sparingly; it is vital that it should be limited in the offences that it covers; and it is vital that there are adequate safeguards in the way that it is used. Presumably we shall come to those safeguards later in the debate.
I accept that, as the Attorney-General says, in the end it will be a matter of balance as to which offences will be covered. I am sure that my noble friend Lord Thomas is right to say that in the past we have argued for or considered the issue of double jeopardy in murder or manslaughter cases, but how can one be sure that all offences with a high profile will necessarily fall into that category in the future? Clearly, it is arguable that someone who is charged, for example, with a series of rapes or with arson—offences of equal seriousness—should be liable to be retried provided the evidence is there and the tests are met. I take the first two offences on the Attorney-General's list. Therefore, while I sympathise with what my noble friend Lord Thomas says, I do not think that one can in practice limit it as narrowly as he wishes. Therefore, I welcome what the Government have done in producing a new list at this time.
My Lords, in one sense, after the very thorough debate on double jeopardy at the previous day of Report stage, there is little more to be said. On that occasion, the principle having been conceded by the House, noble Lords raised a theme that bears on whether the list provided by the Government or the list provided by the Benches opposite would be the better list. Many noble Lords fear that, the double-jeopardy principle having been breached once, we could be on a slippery slope and that there will be pressure for anything that could be called high profile to find its way on to the list. Therefore, to my mind, to judge between the amendments before us, we should consider which set of amendments provides some kind of principled division between the offences that can be retried and those that cannot.
It seems to me that the amendment in the name of the noble Lord, Lord Thomas of Gresford, limits the offences in a way that can be described as principled; namely they are offences in which life has been taken. If we are to make this major change, as the House has decided, it is extremely important to reassure those of us who believe that this is a dangerous precedent that there is a principled bulwark against the gradual accretion of crimes to the list simply under pressure from the press or from a public outcry in a particular place. Therefore, I commend the amendment that limits those offences that would appear in the Bill to those in which life has been taken.
My Lords, as one who unsuccessfully opposed the whole of this change in the law last week, my position is to favour the proposal put forward by the noble Lord, Lord Thomas. I believe that we make a great mistake in getting rid of a historic rule of English law and if we are to do that, we should confine it as narrowly as possible. Looking back, the real force for this change was the Law Commission's report. It is true that it was mentioned in the Macpherson report, but I believe that the support given by the Law Commission has led to the present provision. I strongly recommend to your Lordships that we should confine the principle as narrowly as possible and in accordance with the proposal of the noble Lord, Lord Thomas.
My Lords, I too am not totally opposed to some relaxation of the rules, as I have made clear in the past. But I agree both with the noble Lord, Lord Thomas, and with the noble Lord, Lord Neill of Bladen, that in the first instance the exceptions should be confined as narrowly as possible and then let us see how the provision works. Therefore, I would support the amendment in the name of the noble Lord, Lord Thomas, and oppose the amendment which has apparently been agreed between the two Front Benches.
Perhaps I may underline one reason. The Law Commission clearly considered that this a very important and difficult step to take. It said that in the first instance the matter should be confined to murder. No good reason has been given why we should reject its advice.
My Lords, I have doubts about the breadth of the list put forward by the Government. I see very much the force of the argument that we should follow the Law Commission's representations and the principled argument developed by the right reverend Prelate, whereas we look at a list of offences which have here been categorised as serious—and they are serious—but on relatively judgmental grounds without the underlying thread of principle that will indicate how this branch of the law will develop.
It seems to me—I may be wrong—that this intertwines in some way with an amendment that will be put forward later by the noble Lord, Lord Clinton-Davis, in which the noble Lord seeks to insert in the provision for retrial regarding evidential requirements that evidence,
"could not reasonably have been adduced".
I am not, at the moment, clear about the Government's approach to this amendment. For my part, I should be extremely sceptical about a relatively long list of offences, particularly if this protection, and this discipline on those who carry out their inquiries, was not accepted by the Government and introduced. But, in any event, I slightly favour the approach put forward by the noble Lord, Lord Thomas of Gresford.
My Lords, I too think that we should proceed incrementally. I see no virtue in leaping far ahead. We can always add to the legislation. Criminal Justice Bills seem to appear at every Session, so there is no reason to doubt that the opportunity will arise again.
On the final point made by the noble Lord, Lord Alexander, when we reach the amendment of the noble Lord, Lord Clinton-Davis, we shall see whether his very understandable concern, which I share, is catered for. I believe that it probably is by the way in which the Government seek to provide safeguards. But we shall come to that matter later.
My Lords, perhaps I may ask a procedural question. Clearly, the first logical question is whether one reduces the list to the size wanted by the noble Lord, Lord Thomas of Gresford. If one decides not to do that, it seems to me that everyone is agreed that the Government's pruning is an improvement. However, if the House accepts the noble and learned Lord's amendments which prune the list, can it go on and substitute the very much shorter list of the noble Lord, Lord Thomas, or will it be said that that has been pre-empted by the governmental pruning?
My Lords, on advice, I agree with that. I am grateful to noble Lords who have spoken in this short debate. I recognise, as I did last week, that there are sincerely held views about the desirability of including these provisions at all. That was the debate which we had in detail and decided last week.
I thank the noble Baroness, Lady Anelay, for her support, but, as she said, the provision involved discussion and a degree of compromise. As a number of noble Lords have said during the debate, ultimately it is a question of judgment. For these purposes, we believe that the judgment reached, at least on both Front Benches, is just and appropriate.
Before turning to the detailed points made by the noble Lord, Lord Thomas, and other noble Lords, I agree entirely—this is of course common ground—that it is vital for the police and the Director of Public Prosecutions to consider very carefully whether a case is appropriate before proceeding with it; and, as I said last week, that is one of the important safeguards, as is the fact that it will be for the Court of Appeal to decide whether it is in the interests of justice to proceed. We may return to the issue of safeguards and I shall say something about them then.
I also agree, for the same reason, with the noble Lord, Lord Carlisle of Bucklow, that this is a right which will be used sparingly. Reducing the list means that the opportunity for using it is significantly reduced. The noble Baroness, Lady Anelay, gave some figures which might give some indication in relation to that. Having said that, I remain of the view that the pruning proposed by the Government takes adequate and proper account of the concerns expressed.
Amendment No. 155 goes too far. Despite what the right reverend Prelate the Bishop of Worcester said, we do not see the principle behind the shorter list; nor, for that matter, did Lord Justice Auld. It is right to recollect that although, as a number of noble Lords have remarked, the Law Commission made an important recommendation in relation to double jeopardy, so did Lord Justice Auld in his very important report on access to justice. He was in favour of not limiting the proposal to murder. He recommended that it should extend to other grave offences punishable with life and/or long terms of imprisonment. The Government's list in the main covers offences which are punishable by life imprisonment. He said—and I commend it to noble Lords:
"What principled distinction, for individual justice or having regard to the integrity of the system as a whole, is there between murder and other serious offences capable of attracting sentences that may in practice be as severe as the mandatory life sentence? Why should an alleged violent rapist or robber, who leaves his victim near dead, or a large scale importer of hard drugs, dealing in death, against whom new compelling evidence of guilt emerges, not be answerable to the law in the same way as an alleged murderer?".
I note that the list of the noble Lord, Lord Thomas, does not include all offences in which death is caused. It does not include manslaughter, or arson endangering life in which it may be a matter of lucky happenstance that death does not in fact result, but the culpability of the offence may be just as great.
We do not think that it should be possible for a person who has been acquitted of a violent rape to escape being retried if new and compelling evidence comes to light. Equally, we do not think that it is right to exclude the case of someone directing a terrorist organisation, which may very well be dealing in death. I give way to the noble and learned Lord.
My Lords, if the noble and learned Lord the Attorney-General is looking for a principled distinction, surely there is a very clear one: murder is subject to a mandatory sentence of life imprisonment, a point on which no doubt he will rely when we come later to other amendments. What is wrong with that as a principled distinction?
My Lords, I shall not have the pleasure of dealing with that part of the debate today, although I shall read with interest of course all that is said. The principle here is the principle of finding the right balance where particularly serious crimes can be the subject of a retrial if new and compelling evidence comes to light.
The noble Lord, Lord Thomas, says that the public disquiet test he poses would be satisfied only in the case of murder. I disagree and would strongly suggest that kidnappers, terrorists and violent rapists, if allowed to walk free, although there is new and compelling evidence which cannot be tested again, would also satisfy the test of public disquiet. That is the difference between us. The public interest in obtaining proper convictions in those circumstances is plain. To reduce the list simply to murder, soliciting murder and genocide would exclude too many offences. Noble Lords will note that not even attempted murder is included. With respect, I do not understand the principle for including soliciting murder but not attempted murder. We owe it to victims and their families to make those provisions.
moved Amendments Nos. 145 to 154:
Page 219, line 13, leave out "or 2"
Page 219, line 17, leave out "or 2"
Page 219, line 22, at end insert—
"Assault by penetration
An offence under section 2 of the Sexual Offences Act 2003.
Causing a person to engage in sexual activity without consent
An offence under section 4 of the Sexual Offences Act 2003 where it is alleged that the activity caused involved penetration within subsection (4)(a) to (d) of that section. Rape of a child under 13
An offence under section 5 of the Sexual Offences Act 2003. Attempted rape of a child under 13
An offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit an offence under section 5 of the Sexual Offences Act 2003. Assault of a child under 13 by penetration
An offence under section 6 of the Sexual Offences Act 2003. Causing or inciting a child under 13 to engage in sexual activity
An offence under section 8 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (3)(a) to (d) of that section was caused. Sexual activity with a person with a mental disorder
An offence under section 31 of the Sexual Offences Act 2003 where it is alleged that the touching involved penetration within subsection (4)(a) to (d) of that section. Causing or inciting a person with a mental disorder to engage in sexual activity
An offence under section 32 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (4)(a) to (d) of that section was caused." Page 220, line 10, leave out paragraph 15.
Page 220, line 15, leave out paragraph 16.
Page 221, line 7, leave out paragraphs 24 to 30.
Page 222, line 15, leave out paragraph 36.
Page 223, line 19, leave out paragraph 46.
Page 223, line 24, leave out paragraph 47.
Page 224, line 15, leave out paragraphs 55 to 61.
On Question, amendments agreed to.
moved Amendment No. 155:
:TITLE3:LIST OF OFFENCES FOR ENGLAND AND WALES
1 Murder. Soliciting murder
2 An offence under section 4 of the Offences against the Person Act 1861 (c. 100) (conspiring or soliciting to commit murder). Genocide, crimes against humanity and war crimes
3 An offence under section 51 (genocide, crimes against humanity and war crimes) or 52 (conduct ancillary to genocide, etc committed outside jurisdiction) of the International Criminal Court Act 2001 (c. 17).
:TITLE3:LIST OF OFFENCES FOR NORTHERN IRELAND
4 Murder. Soliciting murder
5 An offence under section 4 of the Offences against the Person Act 1861 (c. 100). Genocide, crimes against humanity and war crimes
6 An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
7 A reference in this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time."
My Lords, I have presented what I want to say on the amendment, but perhaps noble Lords will permit me to reply to the comments that the noble and learned Lord the Attorney-General has just made. In particular, I draw his attention to paragraph 4.22 of the Law Commission's report, which states:
"Any exception [to the double jeopardy rule] must, however, be limited to those types of cases where the damage to the credibility of the criminal justice system by an apparently illegitimate acquittal is manifest, and so serious that it overrides the values implicit in the rule against double jeopardy".
On the noble and learned Lord's other point about whether there is a principled basis for murder as opposed to any other crime, the Law Commission, at paragraph 4.34, said that,
"murder, as the most serious form of homicide, is in a unique position and can as a matter of principle be separated off from all other offences. There is, we must accept, a potential problem with using such an analysis to justify treating murder in this way. Murder, as defined in English law, is not confined to deliberate killing".
It deals also with intent to cause serious harm. Even if most murderers are not deliberate killers, however, there is still an important sense in which deliberate killing is the core of the offence of murder. That is sufficient to justify concluding that it remains a unique offence, not merely one that is more serious than others.
The Law Commission's view on whether there is a principled distinction with murder is as I have described it. On the principle of disquiet to the public, the Law Commission is with us. For that reason, I beg to move the amendment.
My Lords, the Government's position is to resist the amendment. The amendments that have just been agreed and those that the noble Lord is moving do not admit of the principle to which he relates. The Law Commission quotations that he cited limit the position to murder; that is not what the noble Lord's amendment would do. He includes cases that do not involve death at all—soliciting murder might not; nor might war crimes and breaches of the Geneva Convention. I make no complaint about that. It is a question of balance.
My Lords, I agree with the noble Lord that one does not find the right balance by limiting the scope to murder—neither of us does. I continue to resist the amendment.
My Lords, Amendment No. 156 is consequential to Amendment No. 157, whose purpose is to ensure that the Director of Public Prosecutions must take into account the United Kingdom's obligations in relation to double jeopardy under the Treaty of European Union. The purpose of the amendment is to make it clear that the statutory provisions to reopen acquittals given in other EU member states will be compatible with the United Kingdom's obligations under the Treaty of European Union. The Director of Public Prosecutions will take into account those obligations when deciding whether to make an application to the Court of Appeal.
At present, we are in negotiation with our European Union partners to provide for mutual recognition of acquittals in the courts of other EU member states. Those negotiations continue but are aimed at preventing the reopening of cases for which there has already been an acquittal in another EU member state, except in exceptional circumstances. The amendment makes it clear that the DPP will have to consider any obligations that arise as an outcome of those negotiations, before making an application to the Court of Appeal. I beg to move.
moved Amendment No. 157:
Page 41, line 17, at end insert ", and
"( ) any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem."
On Question, amendment agreed to.
[Amendment No. 157A not moved.]
Clause 62 [Determination by Court of Appeal]:
[Amendment No. 157B not moved.]
Clause 63 [New and compelling evidence]:
My Lords, we now move to the different topic of confining the nature of the new and compelling evidence that is to trigger the retrial of an acquitted person. In general, retrials are usually asked for on new evidence where the issue is identity. It is in those cases that, in recent years, more scientific methods have evolved that may indicate that the person acquitted was the perpetrator of the offence.
There are only two ways in which one can obtain compelling evidence: a confession or clear scientific evidence. One should also have regard to the problem of murder cases, on which, I suspect, despite the decision taken a moment ago, most of the clamour for retrials will take place. In murder cases identity is not the usual issue. I have seen the statistic: in about 10 per cent of cases identity is the issue in a murder trial. Normally the question is whether there is intent, provocation, self-defence and so forth. Those are the usual defences in murder trials. Identity rears its head only occasionally. The same goes for rape, which is another area when one might expect applications for retrial. The question is not consent—I cannot imagine that there would be fresh evidence that would go to the issue of consent in a rape trial that could make any difference. However, the issue is identity.
We have considered the two aspects of overwhelming evidence that would make a retrial of an acquitted person just against the background that we have discussed of the double jeopardy rule. We do not think that confessions are a sufficient ground, largely because, in my experience, confessions arise from the evidence of other prisoners in prison—cell confessions and confessions to people who have an interest to serve. That type of evidence, although it might be dealt with by the Court of Appeal in deciding whether to grant leave, is inherently unacceptable. So we think it right to confine the fresh evidence that goes essentially to issues of identity to scientific evidence such as DNA or new methods that may evolve. We have been familiar with fingerprints for many years, but identification from the iris of the eye is something that is new and coming into this field.
We believe that evidence of that nature is the only evidence capable of giving the Court of Appeal sufficient assurance that the likelihood of a conviction in a retrial makes it just for that retrial to take place.
My Lords, before the noble Lord sits down, may I point out that there is no definition of "scientific" in this part of the Bill? Does he have a statutory definition of "scientific" in mind, because much must depend on how that word is defined?
My Lords, before I get into the business of defining the word "scientific", it is important to establish the principle, which is the purpose of this amendment.
I note that I have not spoken to Amendment No. 159 which is grouped with this amendment. Again, we take the view that it is very important to prevent applications for a retrial coming before the court on evidence that was discoverable by,
"reasonable and diligent inquiry before or at the proceedings in which the person was acquitted".
One of the basic problems with the abolition of the double jeopardy rule is that it could lead to sloppy police investigation in the first place. The purpose of this amendment, grouped with the one to which I have already spoken, is to ensure that that does not happen. I beg to move.
My Lords, I am delighted that my noble friend tabled this amendment. The noble and learned Lord the Attorney-General may remember that we had a very brief exchange on the subject of confessions last Thursday, in which I raised the case of Lawrence Clarkson the ranter who claimed to have slept with 365 women. The noble and learned Lord said that that was quite a different case from the other one that we discussed. One was an admission of crime and the other was sheer boastfulness. It may have escaped the noble and learned Lord's attention, but at the time Lawrence Clarkson spoke, adultery was actually a capital offence, so the distinction was a little less than the noble and learned Lord thought. Admittedly, it is a capital offence of which I believe only six known convictions have yet been discovered, but capital offence it was, so Clarkson took a risk.
On the word "scientific", the noble Lord, Lord Renton, raises a point, which, as always, demands thought. Over the centuries, "scientific" has changed its meaning fairly considerably. A great deal that appeared even to a man as clear-headed as Francis Bacon to be scientific would not appear to us to be so. A great deal of the literature on witchcraft was described at the time as scientific. I would have thought that this was something best left to evolve according to the wisdom of the common law at the time prevailing. Were we to attempt to define it in statute we would be attempting to ascribe in stone something that, I regret to say, has the viscosity of mud.
My Lords, I speak to Amendment No. 158A in my name. The Bill as drafted is inordinately complex, as are the amendments. The question arises of whether my amendment has been overtaken by anything that the Government have produced. It may have been. In any event, what I am trying to do, which may not be sufficient, is to ensure that the evidence could have been adduced—it was there and it was possible for the evidence to be considered adduced. I cannot find any provision in the government amendments that effect that. However, I may be wrong. I am puzzled by the Government amendments in this regard, and I am trying to put the matter beyond any peradventure of doubt, which this amendment does.
My Lords, I strongly support the amendment in the name of the noble Lord, Lord Clinton-Davis, and Amendment No. 159 in the name of my noble friend Lord Thomas of Gresford. Surely, when we talk about new and compelling evidence, we are talking about evidence that was not available at the time of trial. A person who goes before the Court of Appeal for a defendant and requests a retrial because of fresh evidence will be asked, "When was that evidence available to you?". I understand fresh evidence to mean—and I think it still does mean—evidence that was not readily available at the time of the trial. Equal matter should apply to new evidence under the prosecution's power to apply for a retrial.
Indeed, the Attorney-General himself has accepted that point. I made a note of what he said in answer to another amendment. On two separate occasions he said,
"if new and compelling evidence comes to light", which clearly implies that new evidence comes to light after the trial has taken place. However, new evidence is defined in Clause 63(2). It states:
"Evidence is new if it was not adduced in the proceedings".
With respect, that is totally different from saying that it has come to light since the proceedings. Those of us who accept that the principle of double jeopardy should go and who support the Government's new list and the amendment to this Bill have done so on the basis that it is vital that there are proper and adequate safeguards before the power can be used. It is essential that one of them should be that the evidence that a party wishes to put before the jury should not be evidence that it could have put, had it chosen, before the jury at the earlier trial.
My Lords, I was concerned, immediately I read the amendment tabled by the noble Lord, Lord Clinton-Davis, by a recollection that the matter was covered. Is it not covered by Clause 64, which deals specifically with the interests of justice? Clause 64(2) says:
"That question is to be determined having regard in particular to . . . whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
My Lords, I agree with the noble and learned Lord, Lord Ackner. The one reference is in Clause 64(2)(c). As he says, it states:
"the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
That is the only safeguard with regard to the word "new". It does not seem adequate merely to say that it is likely that it would have been adduced, if someone had not made a mistake.
In Clause 63(2), there is a clear statement of what "new" evidence is. It is evidence that,
"was not adduced in the proceedings".
It ought to be made clear in the Bill that "new" evidence means fresh evidence, as it has always been known—namely, evidence that was not readily available to be used at the time by the party that now wishes to introduce it. Otherwise, the prosecution could, if someone has been acquitted, go to the Court of Appeal, apply for a re-trial and say that it wished to add new and compelling evidence that it had had at the time but the importance of which it had not realised until it had heard the defence.
My Lords, will the noble and learned Lord the Attorney-General give us a little guidance? Let us imagine a trial in which it is expected that the prosecution will be able to call six eye-witnesses to the event that forms the foundation of the trial. When the trial takes place, none of the six witnesses turns up, and the prosecution strongly suspects that they are being kept out of the way by the defendant. Some time later, the six witnesses turn up, present themselves to the authorities and say, "We were kept away by the defendant. We saw the crime being committed".
In such a case, there would be overwhelming justification for a new trial, following an acquittal. That certainly is not scientific evidence.
My Lords, I began by being attracted to the amendment tabled by the noble Lord, Lord Clinton-Davis, and to the way in which the argument was put by my noble friend Lord Carlisle of Bucklow. I still feel that I would have expected, at first sight, to find such a provision in Clause 63.
As the noble and learned Lord, Lord Ackner, pointed out, there is a not dissimilar provision in Clause 64(2). However, will the noble and learned Lord the Attorney-General say whether he regards the effect of Clause 64(2) as being as strong and effective as if the words suggested by the noble Lord, Lord Clinton-Davis, were inserted?
My Lords, I would support the making of Amendment No. 158A or, failing that, Amendment No. 159 for the reasons given by the noble Lord, Lord Carlisle of Bucklow. For two reasons, I do not agree with the suggestion made by the noble and learned Lord, Lord Ackner, that the matter is covered by Clause 64(2)(c). First, Clause 64(2)(c) is only a factor to be taken into account in deciding where the interests of justice lie. The fact that the evidence was available could be overridden by the other factors, whereas, if we made the amendments that we are considering, there would be an absolute bar.
Secondly—it may be a technical point—Clause 64(2)(c) applies only if an officer or prosecutor fails to act with due diligence. What happens if an officer consciously decides not to call the evidence because it would throw some doubt on another side of his case? If he then loses and the man is acquitted, he might say, "I'll have another shot. This time, I will call that evidence, and I will run the risk". That is not covered. The words used by the noble Lord, Lord Clinton-Davis, are exactly the test that applies to the defence and, therefore, ought to apply to the prosecutor.
I am wholly against Amendment No. 158. The noble Lord, Lord Thomas of Gresford, said that there were two circumstances—a confession and scientific evidence. I would have thought that there was a third—namely, evidence emerging that the defendant had conspired to procure evidence to get him off. If six people come along—this is not quite the example given by the noble Lord, Lord Waddington—and say that they were induced into giving false evidence, that is such a circumstance.
The confession circumstance is more disquieting to the public. What happens if we have a man, such as—I think—Mr Haigh, who, after being acquitted of some murders, published a book saying that he had done them and, thus, made a lot of money? Surely, that calls for a re-trial. I agree with the noble Lord, Lord Thomas of Gresford, that, if a fellow prisoner says, "He confessed to me one night", that may not be compelling evidence. That is dealt with further down. If, however, the confession is obviously true, it would be extraordinary to have an undesirable new practice such that, if a man had made a lot of money by confessing a crime, he could not be re-tried because that was not scientific evidence.
My Lords, the amendments divide into two. The first, Amendment No. 158, deals with the sort of evidence that can get us to the starting block. As the noble Viscount, Lord Bledisloe, rightly said, getting to the starting block with new evidence is only part of the test. It must be compelling and, indeed, new; I shall come back to the definition of that.
With respect, I wholly disagree with the noble Lord, Lord Thomas of Gresford, that only scientific or confessional evidence could be covered. I do not see why it should be limited to scientific evidence. Many different sorts of new evidence could come forward, and some examples have been given in the debate. I need not go into the detail of those examples or enter into the debate, for example, between the noble Lords, Lord Thomas of Gresford and Lord Waddington. The fact that people may come forward who are able to give important evidence, which tends to show the commission of a crime, is certainly not beyond human knowledge. There may be the discovery of physical evidence—for example, a murder weapon or something of that kind. Therefore, it is not right to restrict it to those two categories.
I also strongly disagree with the statement that confession evidence may not be very important evidence on which one can rely. In Committee, I gave the example of an extremely disturbing case in which a man hid the young woman that he had killed behind a bath panel and subsequently boasted—not just in his cell, but to a number of people—that he had committed the murder. It would be enormously disquieting to public confidence should such matters not be taken into account.
I entirely agree that it is necessary to determine whether a particular confession is compelling. Of course, there are cases in which confession evidence is not, but that is the second stage of the test, and not the first. However, I would add that the noble Lord, Lord Renton, was right to ask what exactly is meant by "scientific" in this context. I therefore resist the amendment. As the noble Earl, Lord Russell, is not in his place, I shall not go into the variance between us about the differences between admitting adultery and admitting murder.
I turn now to Amendment No. 158A, proposed by my noble friend Lord Clinton-Davis, and Amendment No. 159, proposed by the noble Lord, Lord Thomas, which have similar effects. Amendment No. 159 would restrict the evidence that the Court of Appeal could consider. It would mean that evidence, which might somehow have been discovered before the original trial, could not be regarded as "new" within the meaning of Clause 63. Therefore, the evidence would have to be entirely excluded from consideration by the Court of Appeal, which would lead to protracted arguments about whether a particular piece of evidence could have been discovered, regardless of its weight or its merit.
I hope that I do not take an unfair point if I draw attention to the noble Lord, Lord Carlisle of Bucklow, who, in putting forward his eloquent observations, used a different formulation. He used the formulation of evidence which was readily available, which is not the same as the test proposed in Amendments Nos. 158A and 159. There could be quite a significant difference between them. I draw attention to that simply because it indicates the kind of issue that there may be.
My Lords, there is a difference. Evidence which is "readily available" is one thing. Evidence which is not "readily available" may still be evidence which, with reasonable diligence, could have been adduced or, "reasonably have been adduced", in the words of the noble Lord, Lord Clinton-Davis. It may be said that it would have been reasonable to use super-human efforts to find it if it was not readily available. That is an indication of the difficulty to which that gives rise.
Clause 63 gives a clear statement as to what constitutes new and compelling evidence by defining it as evidence which,
"was not adduced in the proceedings in which the person was acquitted".
That is a clear test. One then comes—and this is the way in which we have chosen to deal with it—to the test in Clause 64, which makes the issue of whether the evidence is likely to have been adduced,
"but for a failure . . . to act with due diligence or expedition", one of the factors to which the Court of Appeal must have regard.
The Court of Appeal must have regard in deciding whether it is in the interests of justice for the court to make the order. That is obviously the overriding and—I hope noble Lords agree—the right test of what is in the interests of justice. The noble Lord, Lord Alexander of Weedon, asked whether that is precisely the same as the effect of the tests proposed in Amendments Nos. 158A and 159. It is not. He used the word "effective". In my view, it is a very effective clause, but it is not an absolute bar. It would be wrong to think that it is. The noble Viscount, Lord Bledisloe, was right to say that.
Therefore, it is a factor. I do not say that it is a minimal issue; I have no doubt that it will be an important issue for the Court of Appeal to take into account. But it would be open to the Court of Appeal to say, "Having looked at all the circumstances, including the failure to exercise due diligence"—which may be gross or slight—"and having regard to the overriding interests of justice, it still remains in the interests of justice for the retrial to take place". There is a difference, which provides a very important safeguard, so that there is no encouragement to lax investigation.
There will be examples of evidence which had been discovered but the relevance of which only recently came to light—for example, new testing techniques, such as DNA. The provision must allow for DNA testing to constitute "new" evidence, even when the police may have had the sample for many years. I believe that the noble Lord, Lord Carlisle, picked me up on the expression, "new evidence comes to light". Of course, when using the expression, "comes to light", it depends which room one is talking about in which the light is shining. If the light is the original court, it was not within that light. Therefore, one must look at whose judgment is being considered. In using that expression, I obviously was not moving in any way away from the definition given in the Bill.
However, there is one circumstance to which I shall draw attention. It was picked up by the Joint Committee on Human Rights and we have given thought to it. I would have to read Hansard to be quite clear, but probably it touches on the example given by the noble Viscount, Lord Bledisloe. The Joint Committee pointed out that there could be circumstances in which relevant evidence was in the possession of the prosecution at the original trial, but it was not adduced for tactical reasons. That is rather different from the case where the evidence might have been discovered by the police or, perhaps, its significance understood. I can give the House an undertaking, which I have agreed with the Director of Public Prosecutions, that where evidence was not adduced for tactical reasons, it would not be right to use it as a basis for an application under Part 9. I hope that that will give some comfort. It will be reflected in guidance.
As regards other evidence, which is "new" within the terms of Clause 63, and compelling, it should be seen by the Court of Appeal and taken into consideration in determining the interests of justice. For those reasons, I resist Amendment No. 158, which would unnecessarily limit the definition of evidence which could even qualify. For the reasons that I have given, I resist Amendments Nos. 158A and 159 because they would be too absolute a bar.
The noble Lord, Lord Clinton-Davis, asked whether his amendment had been overtaken by other amendments. I hope that he will at least understand why the Government take the view that although it is not identical in effect—I have made it clear that it is not identical in effect—there is important protection against his concerns about Clause 64.
My Lords, I have taken into consideration the criticisms expressed by noble Lords and the noble and learned Lord the Attorney-General in relation to Amendment No. 158 and I do not propose to press it. However, the distinction to be made in regard to Amendments Nos. 158A and 159 is between whether a new trial can be sought on the basis of fresh evidence, or whether a new trial can be sought on the basis that a prosecutor or officer made a mistake or failed to act with due diligence.
At the moment, if anyone approached the Court of Appeal to ask for fresh evidence to be introduced on behalf of a defendant, and said, "I am sorry, someone in the solicitors' office made a mistake and that is why the evidence was not called at the trial", they would be given very short shrift. Leave to appeal would not be granted. What the Government are seeking here is to introduce what appears to be a lower standard in relation to the position of the prosecution.
My Lords, does the noble Lord agree that there are cases, such as those, for example, brought by the Criminal Cases Review Commission where, in the case of an appeal against conviction, the Court of Appeal is being asked to consider evidence which could have been put forward by the original team at trial? Indeed, incompetence on the part of the original team may itself form a ground of appeal.
My Lords, that is true; the ground of appeal would be the incompetence of the defence team. However, the position to which I referred was an application to introduce fresh evidence in an appeal.
My Lords, I am sorry. The incompetence on the part of the defence team may be precisely because it failed to adduce important evidence which would have secured the acquittal.
My Lords, it would require a little research to see whether that has ever been the case. I merely refer to fresh evidence which has to be evidence that was not, in the terms of Amendment No. 159,
"discoverable by reasonable and diligent inquiry before or at the proceedings", in which a person was convicted. That is the position so far as concerns an appeal against conviction.
I beg leave to withdraw Amendment No. 158, but I give notice that, should the noble Lord, Lord Clinton-Davis, seek to press Amendment No. 158A, we shall support him. If not, we shall proceed with Amendment No. 159.
Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 159A not moved.]
Clause 64 [Interests of justice]:
[Amendment No. 159B not moved.]
Clause 65 [Procedure and evidence]:
[Amendment No. 159C not moved.]
Clause 66 [Appeals]:
[Amendment No. 159D not moved.]
Clause 67 [Restrictions on publication in the interests of justice]:
[Amendment No. 159E not moved.]
moved Amendment No. 160:
After Clause 67, insert the following new clause—
"OFFENCES IN CONNECTION WITH PUBLICATION RESTRICTIONS
(1) This section applies if—
(a) an order under section 67 is made, whether in England and Wales or Northern Ireland, and
(b) while the order has effect, any matter is included in a publication, in any part of the United Kingdom, in contravention of the order.
(2) Where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical is guilty of an offence.
(3) Where the publication is a relevant programme—
(a) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and
(b) any person having functions in relation to the programme corresponding to those of an editor of a newspaper, is guilty of an offence.
(4) In the case of any other publication, any person publishing it is guilty of an offence.
(5) If an offence under this section committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of, or
(b) to be attributable to any neglect on the part of, an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) In subsection (5), "officer" means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(7) If the affairs of a body corporate are managed by its members, "director" in subsection (6) means a member of that body.
(8) Where an offence under this section is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(9) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(10) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales otherwise than by or with the consent of the Attorney General, or
(b) in Northern Ireland otherwise than by or with the consent of—
(i) before the relevant date, the Attorney General for Northern Ireland, or
(ii) on or after the relevant date, the Director of Public Prosecutions for Northern Ireland.
(11) In subsection (10) "the relevant date" means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c. 26) comes into force."
My Lords, in moving Amendment No. 160 on behalf of my noble friend Lady Scotland, I shall speak also to Amendment No. 248 with which it is grouped
The Bill upon introduction contained a clause in similar terms to the one introduced by Amendment No. 160. It was removed when reporting restrictions for this part of the Bill were made dependent on an order of the Court of Appeal rather than applying automatically on the basis that contempt of court proceedings would be available to the court to deal with any breach of the restrictions.
However, further consultation with colleagues in Scotland has indicated that an order of the Court of Appeal of England and Wales cannot be enforced by means of contempt proceedings in the Scottish courts. This clause is therefore required in order to allow reporting restrictions to be enforced throughout the United Kingdom. Without it the restrictions would not apply outside England and Wales. That could lead, for example, to a Scottish newspaper publishing details of a suspect or a case which could prejudice a retrial. The new offence will apply throughout the United Kingdom and may be enforced in the jurisdiction in which a breach takes place.
Amendment No. 248 is a consequential amendment to ensure that the new clause—"Offences in connection with publication restrictions"—extends to Scotland and Northern Ireland as well as to England and Wales. I beg to move.
On Question, amendment agreed to.
Clause 68 [Retrial]:
[Amendments Nos. 161 to 162A not moved.]
Clause 69 [Authorisation of investigations]:
[Amendment No. 162B not moved.]
Clause 70 [Urgent investigative steps]:
[Amendment No. 162C not moved.]
Clause 71 [Arrest and charge]:
[Amendment No. 162D not moved.]
Clause 72 [Bail and custody before application]:
[Amendment No. 162E not moved.]
Clause 73 [Bail and custody before hearing]:
[Amendment No. 162F not moved.]
Clause 74 [Bail and custody during and after hearing]:
[Amendment No. 162G not moved.]
Clause 75 [Revocation of bail]:
[Amendment No. 162H not moved.]
Clause 76 [Functions of the DPP]:
[Amendment No. 162J not moved.]
Clause 77 [Rules of Court]:
moved Amendment No. 163:
Page 52, line 24, leave out from "(1)," to "may" in line 25 and insert "rules of court"
The amendments are minor and consequential. Amendment No. 164 has the effect of ensuring rules of court can be made in connection with orders of the court relating to the imposition of reporting restrictions. Amendment No. 163 is simply a drafting amendment which makes the provision about rules of court less specific. We consider this to be a good idea in the light of changes being made in the Courts Bill.
As a result of the new clause we have had to amend the previous definition of "officer" to allow for a reference in the new clause to an officer of a company. Amendment No. 165 is necessary for that purpose. Amendments Nos. 166 and 167 arise because there is now only a single reference to the 1979 Act, which makes its inclusion in the definitions section unnecessary. I beg to move.
moved Amendments Nos. 165 to 167:
Page 53, leave out lines 3 and 4.
Page 53, line 9, leave out "1979 Act," and insert "Customs and Excise Management Act 1979 (c. 2),"
Page 53, line 11, after first ""officer"" insert ", except in section (Offences in connection with publication restrictions),"
On Question, amendments agreed to.
[Amendment No. 167A not moved.]
moved Amendment No. 168:
Page 54, line 5, at end insert—
"( ) In section 67(10) after "enactment" in each place insert "(including any provision of Northern Ireland legislation)"."
In the main, these amendments are technical and consequential and arise from the extension of Part 9 to Northern Ireland. They are entirely necessary to ensure that the provisions of Part 9 operate properly in Northern Ireland and in the same way as in England and Wales. In particular, Amendment No. 174 provides an important new clause.
Amendments Nos. 168 to 173 are to Clause 80, which deals with the application of Part 9 to Northern Ireland. The amendments address certain differences between the law of England and Wales and Northern Ireland and modify the operation of Part 9 in Northern Ireland. The amendments substitute the appropriate Northern Ireland references in terms of legislation and terminology to ensure that the provisions of Part 9 function correctly in the context of the Northern Ireland legal framework.
I draw attention to Amendment No. 174, which creates an entirely new clause. This provides the Secretary of State with an order-making power to apply any of the provisions under the Criminal Appeal Act 1968 or the Criminal Appeal (Northern Ireland) Act 1980 to the provisions of Part 9. As I am sure noble Lords will agree, this is an important provision. The new clause is necessary to ensure that the new and unique proceedings under Part 9 to the Court of Appeal will function as intended. This order-making power will allow the Secretary of State to apply any of the provisions of the Criminal Appeal Act to a proceeding under Part 9, if this is required, ensuring that the provisions of Part 9 will operate correctly in the event of unforeseen difficulties.
Amendment No. 249 provides change to the extent clause of the Bill, ensuring that the new clause will extend to Northern Ireland. I beg to move.
moved Amendments Nos. 169 to 173:
Page 54, line 6, after "68(1)" insert "and (2)"
Page 54, line 6, at end insert—
"( ) Section 68(6) has effect—
(a) as if any reference to a provision of Part 10 were a reference to any corresponding provision contained in an Order in Council to which section 310(1) applies, at any time when such corresponding provision is in force;
(b) at any other time, with the omission of the words from "unless" to the end." Page 54, line 11, leave out "committed" and insert "returned"
Page 54, line 13, at end insert—
"( ) In section 71—
(a) in subsection (3), for "Part 4 of the 1984 Act" substitute "Part 5 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S. I. 1989/1341 (N.I. 12)) ("the 1989 Order")",
(b) in paragraph (b) of that subsection, for "section 34(7) of that Act" substitute "Article 35(8) of that Order",
(c) in subsection (6)—
(i) for the words from the beginning to "40(8) of that Act)" substitute "Article 38 of that Order (including any provision of that Article as applied by Article 41(8) of that Order)",
(ii) for "subsection" in each place substitute "paragraph",
(iii) in paragraph (e), for "subsections (7A), (7B) and (8)" substitute "paragraph (8)", and
(iv) in paragraph (f), in the inserted paragraph (10A) omit "above",
(d) for subsection (7) substitute—
"(7) Article 41 of that Order has effect as if in paragraphs (8) and (9) of that Article after "(6)" there were inserted "and (10A).",
(e) in subsection (8)—
(i) for "Section 42 of that Act" substitute "Article 43 of that Order", and
(ii) for "subsection (1) of that section" substitute "paragraph (1) of that Article".
( ) For section 72(1) substitute—
"(1) In relation to a person charged in accordance with section 71(4)—
(a) Article 39 of the 1989 Order (including any provision of that Article as applied by Article 41(10) of that Order) has effect as if, in paragraph (1), for "either on bail or without bail" there were substituted "on bail",
(b) Article 48 of that Order has effect as if for paragraphs (1) to (11) there were substituted—
"(1) A person who is released on bail shall be subject to a duty to appear before the Crown Court at such place as the custody officer may appoint and at such time, not later than 24 hours after the person is released, as that officer may appoint.
(2) The custody officer may require a person who is to be released on bail to enter into a recognisance conditioned upon his subsequent appearance before the Crown Court in accordance with paragraph (1).
(3) A recognisance under paragraph (2) may be taken before the custody officer.", and
(c) Article 132A of the Magistrates Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) does not apply.
( ) In section 72(2)—
(a) for paragraph (b) substitute—
"(b) detained in a place of safety in pursuance of arrangements made under Article 39(6) of the 1989 Order,", and.
(b) for "section 46 of the 1984 Act" substitute "Article 47 of the 1989 Order".
( ) In section 73(6) for "section 81(5) of the Supreme Court Act 1981" substitute "section 51(8) of the Judicature (Northern Ireland) Act 1978 (c. 23)".
( ) For section 74(4) substitute—
"(4) The court may at any time, as it sees fit, vary the conditions of bail granted under this section."" Page 54, line 21, at end insert—
"( ) In section 77(3) after "enactment" insert "(including any provision of Northern Ireland legislation)"."
On Question, amendments agreed to.
[Amendment No. 173A not moved.]
moved Amendment No. 174:
After Clause 80, insert the following new clause—
Subject to the provisions of this Part, the Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this Part, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal Act 1968 (c. 19) or the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (subject to any specified modifications)."
On Question, amendment agreed to.
moved Amendment No. 174A:
Before Clause 81, insert the following new clause—
(1) The Police and Criminal Evidence Act 1984 (c. 60) ("the 1984 Act") is amended as follows.
(2) After section 82 of the 1984 Act (Part VIII—interpretation) insert—
:TITLE3:"PART VIII A EVIDENCE OF BAD CHARACTER
82A BAD CHARACTER
References in this Part to evidence of a person's bad character are references to evidence which shows that—
(a) he has committed an offence, or
(b) he has behaved, or is disposed to behave, in a way that, in the opinion of the court, would be viewed with disapproval by a reasonable person.
82B REQUIREMENT OF LEAVE
(1) In criminal proceedings, evidence of a person's bad character is admissible only with leave of the court, unless the evidence—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.
(2) This section does not apply in relation to an item of evidence if—
(a) all parties to the proceedings agree to the evidence being admissible, or
(b) in the case of evidence of the defendant's bad character, the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it.
82C NON-DEFENDANT'S BAD CHARACTER
In the case of evidence of the bad character of a person other than the defendant, the court is not to give leave under section 82B unless the evidence falls within section 82D or 82E.
82D EVIDENCE WITH EXPLANATORY VALUE
Evidence falls within this section 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.
82E EVIDENCE GOING TO A MATTER IN ISSUE
(1) Evidence falls within this section if it has substantial probative value in relation to a matter which—
(a) is a matter in issue in the proceedings, and
(b) is of substantial importance in the context of the case as a whole.
(2) In assessing the probative value of evidence for the purposes of this section, the court must have regard to the following factors (and to any others it considers relevant)—
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(i) the evidence is evidence of a person's misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(i) the evidence is evidence of a person's misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.
(3) In subsection (2)(d) "misconduct charged" means the misconduct constituting the offence with which the defendant is charged.
82F DEFENDANT'S BAD CHARACTER
In the case of evidence of the defendant's bad character, the court is not to give leave under section 82B, unless the evidence falls within section 82G, 82H, 82I, 82J or 82K.
82G EVIDENCE WITH EXPLANATORY VALUE
(1) Evidence falls within this section if the following three conditions are met.
(2) The first condition is that, without the evidence, the court or jury would find it impossible or difficult properly to understand other evidence in the case.
(3) The second condition is that the value of the evidence for understanding the case as a whole is substantial.
(4) The third condition is that the court is satisfied—
(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
(b) that the value of the evidence for understanding the case as a whole is such that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible.
82H EVIDENCE GOING TO A MATTTER IN ISSUE
(1) Evidence falls within this section if the following two conditions are met.
(2) The first condition is that the evidence has substantial probative value in relation to a matter which—
(a) is a matter in issue in the proceedings, and
(b) is of substantial importance in the context of the case as a whole.
(3) The second condition is that the court is satisfied—
(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
(i) how much probative value it has in relation to the matter in issue,
(ii) what other evidence has been, or can be, given on that matter, and
(iii) how important that matter is in the context of the case as a whole.
(4) In determining whether the two conditions are met, the court must have regard to the factors listed in section 5(2) (and to any others it considers relevant).
(5) For the purposes of this section, whether the defendant has a propensity to be untruthful is not to be regarded as a matter in issue in the proceedings.
(6) Only prosecution evidence can fall within this section.
82I EVIDENCE GOING TO CREDIBILITY
(1) This section applies only where—
(a) the defendant makes an attack on a person's character, and
(b) the effect of the attack is to suggest, or to support a suggestion, that the person has a propensity to be untruthful.
(2) For the purposes of this section, a defendant makes an attack on a person's character where—
(a) he adduces evidence of the person's bad character, other than—
(i) evidence that has to do with the alleged facts of the offence with which the defendant is charged, or
(ii) evidence of misconduct in connection with the investigation or prosecution of that offence,
(b) he asks questions in cross-examination that are intended to elicit evidence of the kind referred to in paragraph (a), or
(c) evidence is given of an assertion made about the person by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and the assertion is such that, if it were made in evidence, the evidence containing the assertion would be evidence of the kind referred to in paragraph (a).
(3) Evidence falls within this section if the following three conditions are met.
(4) The first condition is that the evidence has substantial probative value in showing that the defendant has a propensity to be untruthful.
(5) The second condition is that, without the evidence, the court or jury would get an inaccurate impression of the defendant's propensity to be untruthful in comparison with that of the other person.
(6) The third condition is that the court is satisfied—
(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
(i) how much probative value it has in showing that the defendant has a propensity to be untruthful,
(ii) what other evidence has been, or can be, given on that matter, and
(iii) how important it is, in the context of the case as a whole, to prevent the impression mentioned in subsection (5).
(7) In determining whether the three conditions are met the court must have regard to the following factors (and to any others it considers relevant)—
(a) the nature and number of the events, or other things, to which the defendant's attack relates and of those to which the evidence in question (the responding evidence) relates;
(b) when those events or things are alleged to have happened or existed;
(c) how important is the defendant's propensity to be untruthful, and that of the other person, in the context of the prosecution case and of the defence case;
(d) in a case where this section applies by virtue of subsection (2)(b), whether or not the evidence intended to be elicited is actually given;
(e) how inaccurate the impression mentioned in subsection (5) would be;
(f) where the responding evidence is of a spent conviction, the fact that the conviction is spent;
(g) any risk that admitting the responding evidence would be confusing or misleading, or would unduly prolong the proceedings.
(8) Only prosecution evidence can fall within this section.
82J EVIDENCE TO CORRECT FALSE IMPRESSION
(1) This section applies only where the defendant is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.
(2) Evidence falls within this section if the following two conditions are met.
(3) The first condition is that the evidence has substantial probative value in correcting the false or misleading impression.
(4) The second condition is that the court is satisfied—
(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
(i) how much probative value it has in correcting the false or misleading impression,
(ii) what other evidence has been, or can be, given to correct that impression, and
(iii) how important it is, in the context of the case as a whole, for that impression to be corrected.
(5) For the purposes of this section, a defendant is responsible for the making of an assertion if—
(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) the assertion was made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant and intended, in the opinion of the court, to elicit it, or
(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
(6) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
(7) In subsection (6) "conduct" includes appearance or dress.
(8) In determining whether the two conditions are met, the court must have regard to the following factors (and to any others it considers relevant)—
(a) the nature of the impression given by the assertion referred to in subsection (1), and how false or misleading that impression is;
(b) by whom and in what circumstances the assertion is or was made;
(c) the nature and number of the events, or other things, to which the evidence in question (the correcting evidence) relates;
(d) when those events or things are alleged to have happened or existed;
(e) where the correcting evidence is of a spent conviction, the fact that the conviction is spent;
(f) any risk that admitting the correcting evidence would be confusing or misleading, or would unduly prolong the proceedings.
(9) Where in proceedings before a magistrates' court—
(a) the defendant is responsible for the making of an assertion which is apt to give the court a certain impression about the defendant,
(b) the prosecution allege that the impression is false or misleading, and
(c) in reliance on this section the prosecution propose to apply for leave under section 82B to adduce or elicit evidence to correct the impression, the court must first rule (without being given any details about the evidence) whether, however false or misleading the impression may be, it is unimportant in the context of the case as a whole for it to be corrected; and if the court makes a ruling to that effect, no evidence can fall within this section in relation to the assertion in question.
(10) Only prosecution evidence can fall within this section.
82K EVIDENCE GOING TO AN ISSUE BETWEEN CO-DEFENDANTS
(1) Evidence falls within this section if it has substantial probative value in relation to a matter which—
(a) is a matter in issue between the defendant and a co-defendant, and
(b) is of substantial importance in the context of the case as a whole.
(2) For the purposes of this section, evidence is not to be treated as having the probative value mentioned in subsection (1) by virtue of its relevance to the question whether the defendant has a propensity to be untruthful unless the nature or conduct of his defence is such as to undermine the co-defendant's defence.
(3) In assessing the probative value of evidence for the purposes of this section, the court must have regard to the factors listed in section 82B(2) (and to any others it considers relevant).
(4) Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, can fall within this section.
82L Trying more than one offence together
(1) In section 5 of the Indictments Act 1915 (c. 90) (orders for separate trial etc) insert after subsection (2)—
(a) a person is charged with more than one offence in the same indictment,
(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and
(c) the person applies before trial for an order that the offences mentioned in paragraph (b) above be tried separately, the court shall grant the application unless satisfied that trying the offences together would not prevent the defendant having a fair trial.
(2B) The reference in subsection (2A) above to evidence of the person's bad character shall be read in accordance with section 1 of the Criminal Justice and Police Act 2001 (c. 16).
(2) In subsection (3) of that section, after "before trial" insert (in a case not falling within subsection (2A) above).
(3) Where in proceedings before a magistrates' court—
(a) it is proposed that the defendant be tried for two or more offences together,
(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and
(c) the defendant objects before trial to the offences mentioned in paragraph (b) being tried together, the court may order those offences to be tried together only if satisfied that doing so would not prevent the defendant having a fair trial.
(1) If on a defendant's trial on indictment for an offence—
(a) evidence of his bad character has been admitted with leave under section 82B, and
(b) the court is satisfied at any time after the close of the case for the prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.
(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and
(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.
(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,
(b) evidence of the person's bad character has been admitted with leave under section 82B, and
(c) the court is satisfied at any time after the close of the case for the prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.
(4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.
(5) For the purposes of this section, a person's evidence is contaminated where—
(a) as a result of an agreement or understanding between the person and one or more others, or
(b) as a result of the person being aware of anything alleged by one or more others who are, or could be, witnesses in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise have been.
82N ASSUMPTION OF TRUTH IN ASSESSMENT OF PROBATIVE VALUE
(1) Subject to subsection (2), a reference in this Act to the probative value of evidence is a reference to its probative value on the assumption that it is true.
(2) In assessing the probative value of an item of evidence for any purpose of this Act, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.
82O COURT'S DUTY TO GIVE REASONS FOR RULINGS
(1) Where the court makes a relevant ruling—
(a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;
(b) if it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court's proceedings.
(2) In this section "relevant ruling" means—
(a) a ruling on whether an item of evidence is admissible only with leave under section 82B;
(b) a decision whether to give leave under that section;
(c) a ruling under section 82M.
82P RULES OF COURT
(1) Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules.
(2) The rules may require a party who—
(a) proposes to adduce evidence of a defendant's bad character that is admissible only with leave under section 82B, or
(b) proposes to cross-examine a witness with a view to eliciting such evidence, to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.
(3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).
(4) If a party fails to comply with a requirement that has been imposed in relation to an item of evidence by virtue of subsection (2) (and not dispensed with by virtue of subsection (3)) the court may take the failure into account—
(a) in deciding whether to grant leave under section 82B; and
(b) where leave is given, in considering the exercise of its powers with respect to costs.
(5) The rules may—
(a) limit the application of any provision of the rules to prescribed circumstances;
(b) subject any provision of the rules to prescribed exceptions; and
(c) make different provision for different cases or circumstances.
(6) Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.
(7) In this section—
"prescribed" means prescribed by rules of court;
"rules of court" means—
(a) Crown Court Rules;
(b) Criminal Appeal Rules; and
(c) rules under section 144 of the Magistrates Courts Act 1980 (c. 43).
(1) In this Chapter—
"bad character" is to be read in accordance with section 82A;
"criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply;
"defendant" in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings;
(a) the commission of an offence, or
(b) behaviour of a kind that, in the opinion of the court, might be viewed with disapproval by a reasonable person;
"prejudice", in relation to an item of evidence and a defendant, is to be read in accordance with subsection (2);
"probative value" is to be read in accordance with section 82N;
"prosecution evidence" means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution.
(2) For the purposes of this Act, evidence carries a risk of prejudice to a defendant where—
(a) there is a risk that the court or jury would attach undue weight to the evidence, or
(b) the nature of the matters with which the evidence deals is such as to give rise to a risk that the court or jury would find the defendant guilty without being satisfied that he was.
(3) Where a defendant is charged with two or more offences in the same criminal proceedings, this Act has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.
82R MINOR AND CONSEQUENTIAL AMENDMENTS
(1) In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness's conviction for offence may be proved if not admitted)—
(a) for "A witness may be" substitute "If, upon a witness being lawfully";
(b) omit "and upon being so questioned, if".
(2) In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction of privilege against self-incrimination where defendant gives evidence) at the beginning insert "Subject to section 6 of the Criminal Evidence Act 2001 (inadmissibility of evidence of defendant's bad character)".
(3) In section 16(2) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) for the words from "notwithstanding" to the end substitute "even though the Criminal Justice and Police Act 2001 (c. 16) would not prevent the question from being asked".
(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
(2) The rules referred to in subsection (1) include any rule under which, as an exception to the inadmissibility of hearsay evidence, evidence of a person's reputation is admissible for the purpose of proving his character, but only so far as the rule relates to evidence of bad character.
(3) The following cease to have effect—
(a) section 1(3) of the Criminal Evidence Act 1898 (c. 36) (which makes provision as to the questions that a defendant may be asked about his bad character in cross-examination);
(b) section 27(3) of the Theft Act 1968 (c. 60) (admission of evidence of previous convictions for theft etc to prove that defendant knew goods to be stolen).""
The noble Baroness said in Committee that the main purpose of the Government in introducing Part 10 was to clarify a complex area of law. Indeed, as long ago as March 1997, in the dying weeks of the previous Conservative government, the Home Office referred the whole issue of bad character to the Law Commission for mature consideration. The Law Commission took a painstaking four years to look at the matter. After exhaustive historical studies, numerous international comparisons and widespread consultation with both the academic community and the practising community, it published its report, entitled Evidence of Bad Character in Criminal Proceedings, in the year 2001.
With the report came a draft Bill. With one small exception, a consequence of a vote taken in your Lordships' House during the Committee stage, that Bill is identical to the amendment that we have tabled to Part 10.
There are two matters which concern us about Part 10. One is an issue which was touched upon in Committee. In Part 10, the approach of the Government is to introduce a general inclusionary rule for bad character evidence, subject to a discretion for the trial judge to exclude evidence of a particular sort in any individual case. The approach of the Law Commission, by contrast, is to provide a general exclusionary rule, subject to the judge including a particular item of evidence on the application of the prosecution.
The reason why the Law Commission took this view is expressed in Paragraph 6.65 of its report. It states:
"Not all evidence of bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion. We therefore favour a general rule excluding bad character evidence (subject to exceptions) rather than a general inclusionary rule subject to a discretion to exclude".
That is the view of the Opposition, to which I would add two things. One of the important distinctions between the approach taken by the Government in Part 10 and our approach in this amendment is that, in the Government's version, the burden of proof will be on the defendant to exclude bad character evidence, whereas in our version, the burden of proof will be on the prosecution to include bad character evidence, in effect reflecting the existing law. The other difference is that Part 10 permits the court in a far wider range of circumstances than our amendment to include bad character evidence. So much for our first main concern.
Our second main concern involves the question of propensity. In the Government Bill, as your Lordships discovered when we debated it in Committee, Clause 87(1)(a) states,
"the question whether the defendant has a propensity to commit offences of the kind with which he is charged", is a matter in issue between the defendant and the prosecution. If we look at our amendment to the Bill, we see that exactly the opposite position is taken—that is, there are no circumstances in which propensity can be an issue in the case.
The Government's position in Part 10 is an ocean-going departure from the existing law. It has always been the case, so far, that bad character is irrelevant to the issues in the case. On the contrary, bad character refers to a fact that is not an issue in the case.
However many offences a defendant has committed of the same description, unless there can be a connection of the sort laid down by my noble and learned friend Lord Mackay of Clashfern in DPP v P, bad character evidence is always going to be inadmissible. The similar fact exception provided for by my noble and learned friend is clearly laid down in our amendment.
Bad character evidence will always be inadmissible in circumstances where it simply suggests that an individual of a particular sort might be inclined to perform a crime of the sort for which he has been arraigned. That was well put in a decision by Lord Sumner in 1918, in a case called Thompson v King. Lord Sumner said that there was,
"all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man".
What the Government want from their approach to propensity is abundantly clear and, in my view, profoundly pernicious, and makes a complete mockery of the presumption of innocence. I beg to move.
The Government sometimes seem to forget that rules have been developed over centuries, out of experience, by lawyers and judges who are not necessarily liberal in the sense that we would recognise it on these Benches, but nevertheless are concerned with the protection of the individual, particularly in criminal cases. The rule that propensity should not be adduced in evidence to prove a criminal charge is deep within the common law of this country.
The Government are going entirely the wrong way about this. It would be fine if the Government's approach was to accept that it was for the prosecution to apply to a judge to say that previous convictions, or a particular sort of behaviour on the part of the defendant, should put be before the jury, and for the judge to consider that application and rule upon it—as happens frequently at the moment. Instead, however, they are adopting a reverse framework or mirror image of such a provision, whereby it is for the defendant to raise the issue whether his convictions should go before the jury and it is for the judge to make a ruling on that. That applies not only to jury trials but to trials in the magistrates' court as well. As practitioners know, there is a considerable difference between an application made by the prosecution for leave to adduce evidence and applications made by the defence to prevent evidence being introduced. For those reasons, we support the amendment.
My Lords, I support the amendment with more than that thin veneer of that superficial confidence that characterises most of my interventions. I do so because I have the Lord Chief Justice and all the judges of the Court of Appeal Criminal Division on my side. I refer to the memorandum deposited in the Library. The position is put quite typically in paragraph 13 on page 4, which states:
"The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".
That is, in substance, my overall basis for supporting the amendment, which has the imprimatur of the very detailed and lengthy report produced by the members of the body referred to, all of whom are extremely distinguished in their fields.
My Lords, I add a word of support for the amendment. This is one of the most important points in the Bill. My noble friend Lord Kingsland suggested that many of the Government's proposals turn on their head the normal principles of criminal law. The principle that I was brought up on was governed by the particular thread that evidence should be admitted only if it was more probative than prejudicial. The Government's proposals do not stand that test.
I was watching television on Sunday morning when the noble and learned Lord the Lord Chancellor was asked about the matter by David Frost. He said that in taking decisions about people, we take account every day of our judgment about their characters and track records. For me that is too broad brush.
As the noble Lord, Lord Thomas, said, we are dealing with a specific area of human life—the criminal law—in which we have long taken the view that it is important to have specific and circumscribed rules of evidence. In part, that is affected by our ambivalent approach to juries. We would all retain the jury system for serious offences, but we do not completely trust the system in the way it operates. We do not invite juries to give reasons, and many people would be horrified by the reasons that juries could give. Equally, we have always been careful to ensure that we do not put before juries material that might prejudice them but which did not have full evidential value. That principle should be fully maintained.
The balance is obviously not easy to strike, and I understand why the Government are looking for a wider approach. We all know of cases in which juries have acquitted and have then been outraged and distressed to hear that the accused has a string of convictions for similar offences. I do not believe that that is comfortable to any of us, but for me it does not justify tilting the balance so decisively the other way and running the risk that the accused will be damned by his past, even when the strict evidence of the offence is not strong enough.
The noble and learned Lord, Lord Ackner, put the views of the judges. I return to the views of the institutions and organisations that are concerned to uphold, and experienced in upholding, the law. I refer to the Law Society, Justice, of which I am chairman, and the Bar Council. I shall content myself simply with quoting the evidence of the Legal Action Group. When considering the Government's proposals, the group said that they would,
"allow evidence of the defendant's bad character to be admitted more readily".
That is absolutely indisputable. The LAG continues:
"This may result in encouraging the police to focus investigations on people with previous convictions. We also believe that fact finders will be heavily influenced by information about previous misconduct, and that the presumption of innocence will be undermined".
That makes good sense to me.
We all recollect the damage that can be done to our system of law if it is shown to be unfair, and if there are wrongful convictions. We should give effect to the careful considerations of the Law Commission and think long and hard before we go further than that.
My Lords, I rise to express my reservations about what the Government are doing. The noble Lord, Lord Alexander, cited a number of organisations that have expressed at least some reservation about the Government's proposals. At worst, they have expressed hostility to the proposals. I therefore ask my noble friend, and she is a friend, what consultations have taken place with them? What have the Government done? The reservations which they have expressed are not likely to be conceded. Many practitioners also have expressed their concern to me. As a former practitioner myself, I am very concerned about what the Government are doing.
The noble Lord, Lord Alexander, has expressed in very clear terms the reservations of all those organisations. I cannot find anyone other than the Government and perhaps one or two others who support the conclusions that have been reached. The organisations cited include many of those who practise the law day in and day out. It is therefore incumbent on my noble friend to consider what they have to say. It is a long time since I practised criminal law myself. My last case was in 1984, so it has been quite a long time. However, I think that the burden here rests very heavily on those who wish to change in a very marked way the law as it has stood for a very long time.
So I think that at the very least, between now and the next stage of the Bill, all the organisations that have expressed doubts about what the Government are proposing to do ought to be seen. Every one of them includes people with a direct knowledge of the law and how it operates. They represent people who defend people charged with crimes. They represent people who are concerned about the development of the law. It is therefore incumbent on my noble friend to convince not only those who have been against the change that the Government propose but also those who are concerned about the state of the law and what it should stand for in a democracy. It is very important that she should see them and try to convince them, if it is possible, that they are wrong. I think that she will not succeed.
My Lords, I support wholeheartedly every word said by my noble friend Lord Alexander of Weedon and also what has been said by the noble Lord, Lord Clinton-Davis. We discussed this matter at length in Committee. I do not propose to repeat what I or others said on that occasion. However, I think that I may have one new comment.
The Bill as drafted allows,
"evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged", to be put in evidence by the prosecution. I have no doubt that the Minister will say, "Yes. However, although it does not say that it is necessary to obtain the leave of the judge before putting any such evidence before the court, the defendant can make an application under Clause 84(3) that the court must not admit it if there is an application by the defendant to exclude it". So it will be admitted unless the defendant makes an application.
As has been said already, the Bill applies to the magistrates' courts as well as the Crown Courts. Many defendants are unrepresented and will not have knowledge of the fact that they have a right to make an application to exclude evidence that is about to be given. As noble Lords will know, once any evidence of a person's character is before a court it is inevitably bound to influence the court's views of his guilt or innocence of the offence with which he is charged. I do not think that it is sufficient to have a protection of that nature.
My Lords, I agree with it as it stands, but how will it be done? The noble Lord, Lord Clinton-Davis, and I have both practised in the criminal courts. At a particular stage, is the prosecution to say to the magistrates, "I propose to ask a certain question which requires your clerk to tell the defendant that he has the right, if he wishes, to object to that question which I am about to ask"? If so, what is the defendant to make of it? It would imply immediately to the magistrates that the man has a record which the prosecution wishes to put in. I do not think that it is practical for it to proceed in that way.
The only way that such a protection could proceed would be on a counsel-to-counsel basis and in the Crown Court, I assume. One would inform one's opponent of the intention to put in such evidence, although there is no requirement in the Bill to do so, and thereby give him an opportunity to object. However, surely it would be much more sensible to use the exclusionary rule whereby the evidence is not admitted unless the leave of the court is given.
My Lords, I have listened with great care to everything that noble Lords have said about the provisions. I listened also with a little pain. It is unusual for the noble Lord, Lord Kingsland, to use such intemperate language. I think that he said that the Government's provisions are "profoundly pernicious" and that they make a "complete mockery" of and are "an ocean-going departure" from the current law. He sets his stall very high indeed. For the purposes of this debate, may I respectfully suggest to him that he has set it a little too high?
I have listened with care also to the comments of the noble Lord, Lord Thomas of Gresford. This is a very important issue which has been highly contentious in debate. I hope that I will be able to explain with greater clarity why, in some ways, we have departed from the regime or scheme advocated by the Law Commission.
I acknowledge and am pleased to see that by virtue of this amendment both opposition parties agree with us that the current rules in this area—which have been profoundly criticised by the Royal Commission on Criminal Justice in 1993, the Law Commission report, Evidence of Bad Character in Criminal Proceedings and Lord Justice Auld's review of the criminal courts published in 2001—need to be addressed comprehensively. I hear too what was said by the noble Lord, Lord Alexander. I paraphrase his remarks. The thrust of his argument is that we trust juries but not that much and only in precise circumstances. I say right at the beginning that we do not accept that these provisions would lead a person to be damned by their past even when the evidence does not justify it. That cannot with propriety be said in relation to these provisions.
I hope that I shall be able to deal with the request of my noble friend Lord Clinton-Davis in relation to convincing the House of the propriety of our suggestion. I say to the noble Lord, Lord Carlisle of Bucklow, that the position in the magistrates' court, as he will know well, is that if any defendant's liberty is, or may be, in peril, legal aid will be available. I refer also to the good offices of the magistrates' courts clerks, but I shall develop that further later because we are listening to what noble Lords have said and we have certain possible solutions.
We are in agreement that the current rules will not do, that they need to change and that a new provision needs to be put in place. Clearly, there is scope for argument on how exactly the rules should be reformed. The views expressed in the House today represent some of the many that have been expressed on this subject. However, there is a wide consensus that there must be some change, and that too has been reflected in our debate, in particular in Amendment No. 174A that has been tabled by the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay.
Before turning to the detail of that amendment, I should like briefly to address a related point. I am aware that the noble and learned Lord, Lord Ackner, has tabled a number of amendments in this group that would have the effect of removing much of this part of the Bill but offer no alternative in its place. This would, in effect, leave the law very much as it is at present. I should like to say a few words about why we do not consider that that would be a satisfactory way to proceed.
As I say, widespread dissatisfaction has been expressed about the current law. It is plagued by complexity, having developed in a piecemeal fashion over the past century, leaving the rules scattered across statute and common law. This is undesirable, opening the way for inconsistent decisions and time-consuming legal arguments. It can also have a chilling effect on the application of these rules, resulting in evidence of bad character not being admitted even where it would be appropriate to do so. It was instructive that in Committee a number of noble Lords prayed in aid issues such as the inability to adduce evidence about acquittals as if that was the current law. I think that we dealt with that in Committee but we know that that is not the current law. Perhaps that evidenced the misunderstanding that many practitioners can have albeit that they practise in our courts on a daily basis. Noble Lords will be aware of the helpful paper circulated by the Association of Chief Police Officers prior to this debate in which it highlighted how the complexity of these rules can act to keep valuable evidence out of court. Moreover, the current rules offer scant protection for witnesses.
It is time, therefore, for a new statutory framework. That is the object of this part of the Bill. These proposals have given rise to a great deal of debate. Our intention has been to build on recognised concepts in the current law, but state them in a comprehensive and coherent fashion accessible to all and capable of straightforward application. Justice for All applies to victims, witnesses and the accused. This is not about securing convictions at the expense of the rights of defendants. Clear safeguards have been built into the scheme to ensure that the burden of proof continues to rest on the prosecution and that trials are conducted fairly. However, this is about ensuring that the rules are clear and facilitate the admission of evidence of previous offending or other misconduct where it is appropriate and safe to do so.
I turn now to Amendment No. 174A, which, when taken with other amendments in this group, would delete this part of the Bill and insert into the Police and Criminal Evidence Act 1984 an alternative scheme for admitting evidence of bad character. As we have heard, that scheme is, almost entirely, that proposed by the Law Commission in its 2001 report and which formed the basis of our own proposals.
In effect, this invites me to set out the key differences between our own proposals and those of the Law Commission. I am happy to do so. As I hope to demonstrate, the Government have drawn in good measure on the Law Commission's proposals—and many of the apparent differences are simply ones of structure. However, there are areas where we believe that it is right to go further, which I shall seek to explain.
Before doing so I should correct an impression that I am sure may have inadvertently been given by the noble Lord, Lord Kingsland, that propensity was something which the Law Commission disavowed. The Law Commission was clear that evidence of propensity should not be excluded per se but admitted where it had a sufficient bearing on the proceedings. We agree with the Law Commission. Our provisions simply make that explicit. I invite the noble Lord's attention to page 50 of the Law Commission's report, Evidence of Bad Character in Criminal Proceedings, starting at paragraph 4.3. Your Lordships will see that it deals with the test in the leading authority in DPP v P and says that it is too vague. Paragraphs 4.7 and 4.8 deal with the evidence of propensity admitted as similar fact evidence. Pages 51 and 52 contain an analysis of the prosecution's failure to proceed in the case of B(RA). I respectfully suggest that it is wrong to say that the Law Commission felt that the measure should be excluded. I shall not read into the record the totality of the document but it benefits further careful consideration.
"For the purposes of this section, whether the defendant has a propensity to be untruthful is not to be regarded as a matter in issue in the proceedings".
I absolutely accept that there is an exception to that, which is the similar fact evidence exception. I could not have made that clearer in my speech. Indeed, I have the advantage of having my noble and learned friend Lord Mackay of Clashfern sitting behind me who made the leading judgment on similar fact evidence in DPP v P.
My Lords, of course I shall give way but I remind the House that we are on Report.
My Lords, I was dealing with the point made by the noble Lord. He said—I shall be happy if he disavows it—that the Law Commission was suggesting that propensity per se should be excluded. It was clearly not doing that. That was my point.
The definition in proposed new Section 82A is almost identical to that recommended by the Law Commission and which also appeared, in substance, in the Bill prior to amendment in Committee. There are two minor differences.
The first is structural. The Law Commission preferred to include evidence of the facts of the alleged offence, and evidence of misconduct in its investigation or prosecution, within the meaning and definition of evidence of bad character. Most straightforwardly, such evidence would include in a burglary, for example, the evidence of eyewitnesses, forensic evidence and the like. Clearly, that is the central evidence in any case, and the Law Commission proposed that leave should not be required before it was adduced. The Government considered it more straightforward to say that such evidence simply did not come within the definition. However, the effect is the same: it is admissible without leave.
The second difference is more significant and reflects a difference between the proposal in proposed new Section 82A and the Law Commission, not between the Government and the Law Commission. The commission proposed that evidence that tends to show that a person has committed an offence or behaved in a particular way should be capable of admission. The intention was to cover evidence from which it could be inferred that a person had acted in a particular way, rather than that which showed it directly. In our view, that might include evidence on charges for which the defendant is concurrently being tried or for which the defendant has been acquitted. Such evidence is currently admissible, and we believe that it would be a grave mistake to suggest that it would not be admissible in the future.
It may be, in fact, that such evidence will be capable of admission under the definition as a whole. However, it is far from clear, and the omission of the words proposed by the Law Commission is likely to be seen as significant. The Government are, however, fully aware of the concerns that the definition has caused, which were explored fully in Committee. We are therefore willing to look carefully at how we define such evidence, to ensure that the Bill is apt to catch all evidence that should be subject to the rules in this part of the Bill—in particular, evidence which should properly be capable of admission—but does not include evidence which is too remote.
I hope that I can deal briefly with the provisions on evidence of a non-defendant's bad character. On those, there are no differences of substance between the Government and the Law Commission scheme. There is a slight structural difference, so that what appears across four sections in the amendment is dealt with in a single clause in the Bill. We believe that that approach is more accessible. However, the circumstances and tests for admissibility are the same.
I shall turn to the admission of a defendant's bad character. The Government's proposals have been drawn substantially on the Law Commission's work and recommendations, although adopting a slightly different structure. For example, with one exception to which I shall return, the categories of admissibility set out in Clause 84 all appear in the Law Commission scheme. Both schemes apply a test that involves the weighing of the probative value of the evidence against its prejudicial effect in determining whether it should be admitted. There is no dramatic change in the law there.
Much of the subsidiary material in Clauses 85 to 90 relating to the various categories of admissibility is drawn from the Law Commission's proposals. Examples are proposals on what should constitute explanatory evidence, the restriction on a defendant's adducing a co-defendant's record in relation to credibility, and the circumstances in which a defendant might give a false impression of himself that triggers admission of his record.
Noble Lords will also see that proposals made by the Law Commission on a range of procedural matters have been adopted. Those include: stopping the case where evidence is contaminated, in Clause 91; the assumption of truth when assessing relevance, in Clause 92; the court's duty to give reasons, in Clause 93; and the proposal for rules of court, in Clause 94. Indeed, the only proposal not adopted here relates to the question of severance. However, the test for the court to apply under the Law Commission's proposals does not differ substantially from that which applies under the common law and which will continue to apply.
It is also clear, however, that there are substantial differences between the Law Commission's proposals and those in the Bill. Perhaps the most significant of them is in our general approach to admission. The Law Commission's proposals are based on exclusion, but the evidence should not be admitted until a number of hurdles have been overcome. That was highlighted by the noble Lord, Lord Thomas of Gresford. It is evident in the requirement that leave must be sought, and an enhanced test of relevance must be satisfied that evidence is not considered admissible if it does not pass an interests of justice test.
We know that proponents on one side say, "Everything in the clause is already in the jurisprudence, so it is not needed". On the other side, they say, "If everything is there already and we are not doing much other than extending it, why do the Government object to it being codified?". We need to signal that there has been a change, and the question is how we are to do that. It is our view that a more targeted approach is required, one of inclusion that makes it clear that relevant evidence is admissible. The law should therefore make it clear that the test should be whether the evidence is relevant, and then whether it should be excluded.
The prosecution must still show how the evidence is relevant to the case—that is, why it falls within one of the categories set out in Clause 84. Once it has done so, we believe that it is right to place the onus on the defendant to say why the evidence that the court has found relevant should be excluded. That is the case with all other relevant evidence that the prosecution wishes to adduce.
We therefore stand firmly behind the inclusionary approach adopted by the Bill. However, we recognise that there is a practical question of ensuring that defendants are aware in advance that their record might be put in evidence, an issue touched on by the noble Lord, Lord Carlisle of Bucklow. That will enable an application to exclude to be made to the judge, to ensure that the court is in control of the admission of the evidence in those circumstances, as is appropriate. We are therefore prepared to consider whether a formal notice requirement should be introduced to meet the need.
Part of the drive for clarity and transparency, and ensuring that relevant evidence is admitted, is covered in Clause 84(l)(d), allowing a person's record for similar offending to be heard by jurors and magistrates. We shall have an opportunity to debate the matter more fully in a little while, but it was not part of the Law Commission recommendations and I therefore also mention it here. The provision is intended to create a presumption that the courts should hear of similar convictions of the same person. However, it is not intended that evidence should be admitted if too remote to have any probative value. That is why the category is subject to the exclusionary test in Clause 84(3).
We think that that is an important part of shifting the emphasis towards admitting evidence that is relevant unless it is not safe to do so.
My Lords, I asked my noble friend whether she had consulted the organisations mentioned by the noble Lord, Lord Alexander. She has not referred to that. She may be coming to it; I do not know. If not, why not?
My Lords, as the noble Baroness is dealing with the matter at the moment, I shall take the opportunity to ask whether she accepts a statement in the letter of the noble and learned Lord the Lord Chancellor, dated 16th December 2002, to the Joint Committee on Human Rights. He said that, in the case of convictions,
"the starting point is that these convictions will always have some relevance to the issues in the case and it therefore creates a presumption in favour of their admission. However, this is not absolute and is subject to the discretion to exclude on the basis that prejudicial effect outweighs probative value".
She said it would be excluded if there were no probative value, but the noble and learned Lord the Lord Chancellor said it would be excluded if the prejudicial effect outweighed the probative value. Does the Minister accept that?
My Lords, I do and that is why I invite noble Lords to look at subsection (3). It states precisely that. That is why Clause 84(3) is subject to the exclusionary text. The first question is: has the Crown satisfied the judge that it is relevant evidence? If it is relevant evidence, it should go in unless and until one looks at Clause 84(3), which asks whether it is more probative than prejudicial. Here the court gets the opportunity to have its say.
In relation to the comments made by my noble friend Lord Clinton-Davies, noble Lords will know that through the process of the Law Commission Bill and this Bill there has been wide-ranging consultation. Indeed, as I am sure the noble Lord, Lord Alexander, will say, there has been vigorous lobbying in relation to all these matters. They have been taken into consideration not least because we have had the benefit of their being discussed in some depth in your Lordships' House. I know that our officials have had the advantage of responding. I cannot give the noble Lord a list of all those occasions, but I hope he will accept that we have had a fair opportunity to have recite of what the organisations have said and we have had a fair opportunity to have our say.
We recognise that concerns have been expressed both here and in another place about how the clause operates. We are therefore prepared to look further at the issue to see whether we might achieve our aims in another more acceptable way.
I want to highlight two further differences between the proposals in the Bill and the Law Commission's recommendations. The first relates to the defendant's shield. At present, this is lost if a defendant attacks the character of a witness. In those circumstances, evidence of his own record is admissible. The Law Commission proposes that this should be restricted so that only certain attacks trigger the loss of the shield. We do not believe that that is right—it is not what happens at the moment and we believe that it would be unjust to make the change.
Under the Law Commission's proposal, a defendant would be able to accuse a witness of lying or fabricating evidence without losing his shield. So the defendant would be able to do that with impunity. Such attacks should not be capable of being made with impunity. If they are, we risk exposing witnesses to far more frequent attacks in the courts, which will have the further effect of deterring people from coming forward to give evidence. The Bill's proposals, on the other hand, retain the full protection of the current law.
We have also restricted the categories to which the exclusionary test applies. We do not believe that it has a particular role to play, for example, in respect of explanatory evidence (Clause 84(1)(c)); or evidence to correct a false impression (Clause 84(1)(g)), where we have adopted different safeguards. In the case of explanatory evidence, that is already admissible under the current law and is indeed admitted even where it might be thought to be highly prejudicial; for example, evidence of sexual offending.
The test for explanatory evidence set out in the Bill is a high one. Once it has been met, we consider it is important that the court should have this information to perform its task effectively. We do not therefore provide for the exclusionary test to apply.
In relation to evidence admissible to correct a false impression, there are a number of safeguards to ensure that evidence is admitted under this head only where it is appropriate to do so and proportionate to false impression. I give an example of Clause 89(3).
I now turn to Amendment No. 188, in the name of the noble and learned Lord, Lord Ackner, on an issue raised in Committee. We offered to look further at this provision and table an amendment if required. Briefly, Clause 96(2) ensures that where evidence is relevant to charge A but not to charge B, it is not excluded from the proceedings for lacking sufficient relevance. For this reason, we consider that something along the lines of this provision is required. However, the concern has been raised that the court should be able to consider the prejudicial impact of the evidence on the whole of the proceedings.
We recognise that that is an important point and, on reflection, believe that Clause 96(2) can be improved in this respect, which is why I have tabled Amendment No. 189. This makes clear that Clause 96(2) does not apply to the operation of the exclusionary test in Clause 84(3) under which, therefore, the court will need to consider the impact of the evidence on the proceedings as a whole. I hope that that reassures the noble Lord that the substance of the concern has been met and that his amendment can be withdrawn.
As well as Amendment No. 189, I should like to move a number of minor amendments—Amendments Nos. 190, 191 and 241. These are consequential provisions which ensure that other statutory provisions are in line with the proposals in the Bill.
I have sought to outline the differences between the Law Commission's draft and this Bill because there may have been some fundamental misunderstanding. Our Bill is sound because it rests on the sure foundation of what was proposed by the Law Commission. Our proposals are aimed—and I believe that they succeed—at producing a clear, comprehensive, accessible statement of the law, drawing together well established principles of current jurisprudence and restating them in such a way as to ensure that the rules of evidence assist the search for truth in criminal trials. The proposal has succeeded in giving us a great deal more clarity.
I hope that when we come to the additional amendments we will be able to explore how, if at all, they can be better expressed.
My Lords, I am most grateful to the noble Baroness for her comprehensive reply—indeed, adapting her own expression, comprehensive and clear. The only difficulty I have is that on the two issues I raised in my opening—those of inclusionary versus exclusionary and of propensity—she has stuck to the text in Part 10.
There is an enormous difference between an inclusionary rule and an exclusionary rule. It affects the burden of proof and, in addition, in the version we have before us under Clause 84, in only three out of the eight categories is the defendant entitled to question the inclusion at all. In the other five categories, the inclusion is automatic. So it is not just a question of the reversion of the burden of proof; it is a question of whether the opportunity exists at all for the defendants to protest about the inclusion of bad character.
I turn to the question of propensity. I want to state again, as I did in the intervention which the noble Baroness kindly let me make, that the Law Commission's draft excludes propensity in its entirety as a matter in issue in the case. It is true that provision is made in the Law Commission's draft for similar fact evidence; but similar fact evidence is not an example of propensity. It is evidence which goes directly to the issue in the case. That could not have been made clearer by my noble and learned friend Lord Mackay of Clashfern in the case of the DPP v P.
As your Lordships know well, the noble Baroness has sparkled in the manner in which she has promoted and protected the Bill. We can only speculate on what her real feelings are about some of the issues that it raises. Perhaps an expert cryptologist—my noble friend Lady Trumpington, for example, who long ago worked in Bletchley Park—might be able to discern between the lines what the noble Baroness really thinks. I know what she should think. She should think that Part 10 is an affront to the presumption of innocence. For that reason, I shall ask the House to divide on the amendment.
moved Amendment No. 185:
Page 60, line 11, at end insert "in the following circumstances—
(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."
My Lords, I am sure that many noble Lords will recognise the amendment from the Bill's Committee stage in this House. It concerns a matter that I wish to revisit today. I hope that I shall be forgiven for repeating myself, but I wish to make it very clear what we are trying to achieve with the amendment.
The clause repeals subsections (2) and (3) of Section 16 of the Children and Young Persons Act 1963. Those subsections concern offences committed by children and ensure that upon reaching the age of 21 individuals do not have earlier convictions taken into account in later trials. I stand by the assertions that I made in Committee regarding this clause and I repeat that, as currently drafted, it places an unfair burden on those who have, for whatever reason, made mistakes in the past. The clause deals with children who are under the age of 14 when they commit a crime. I am sure that we can all understand the reasons for not including any such matter in a trial which, in many cases, could take place years later.
I agree with many of the points made in Committee by the noble Baroness, Lady Walmsley, and I shall not use up the time of the House by repeating them, except to say that like the noble Baroness we are unsure what good the clause would do and what the Government could hope to achieve by its unamended inclusion in the Bill.
My amendment would ensure fairness by narrowing the instances in which evidence of a criminal record could 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 a jury. Therefore, it would exclude those who had made an error and learnt a lesson. The second category is where the defence has introduced evidence of a defendant's record before the age of 14. The provision is similar to that of the current law on similar fact evidence.
I believe that this clause would not make a trial unnecessarily complex, as was suggested by the Minister. It would offer the Government a compromise between the current position and the amendment that has been tabled in the names of my noble friends Lord Kingsland and Lady Anelay and the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Walmsley, which would leave out the clause altogether.
Those of us who are parents, and even grandparents, understand the temptations and situations that can beset children as they grow up. I believe that if they have genuinely turned their back on offending, it would be an intolerable burden to carry for the rest of their lives. It means that a conviction would never be spent, and I would hate us to legislate to that effect. I plead with the Minister to agree to the amendment. I beg to move.
My Lords, I did not speak to this matter on the first occasion as I was not in the House, but believing, as I do, that it is the responsibility of the state to help and to support young people in trouble, I have always valued the protection given to children in the courts through the Children and Young Persons Act. I am disappointed that in the pursuit of convictions the responsibility that we have towards such young people, usually for the most part from very difficult backgrounds, is to be diluted.
Despite that and accepting that I would much prefer the whole of this provision to be struck out, I recognise that times change. In the area of child abuse and child sexual abuse, where I currently work, we know that without treatment young offenders will accelerate their behaviour. In the interests of other children and young people, the pattern of offending must be understood over time. That is why I support the amendment tabled by the noble Baroness, Lady Seccombe, and hope deeply that the Government will be able to accept the circumstances given.
However, research shows that most young people grow out of offending behaviour and it would be helpful if the Minister could also give reassurance that there would be guidance on what would constitute persistent or continuous behaviour. Will that come from one of the departments—the Department of Health or LCD—or will we have to wait for case law? By saying that I recognise that this latter point assumes acceptance of the amendment, but it is such a good balance of justice and rights that I hope that the Minister will be able to do so in the interests of our young people and their future.
"the prosecution can show continual", and not,
"continuous or persistent commission of similar offences".
It is difficult to commit offences continuously.
My Lords, as on so many occasions, I respectfully agree with the noble and learned Lord, Lord Donaldson, although I am sure that some defendants will try. I have listened with care to what the noble Baroness, Lady Seccombe, has said and what was echoed in support by the noble Baroness, Lady Howarth. These are important issues in relation to how we deal with children.
Section 16(2) of the Children and Young Persons Act 1963 represents an absolute bar on admitting evidence of a defendant's convictions for offences committed under the age of 14, in proceedings for an offence committed over the age of 21. Clause 92 proposes to lift that restriction.
However, that does not mean that such evidence will automatically be heard; far from it. The effect will be that these convictions will be heard only under the new rules set out in the Bill. Where those criteria are satisfied, including most importantly the requirement that the probative value of the evidence outweighs its prejudicial effect, they will be capable of admission. It does not mean that they must be admitted, but simply that they are capable of admission. That is the proposal in the Bill. It rests on the principle that evidence should be capable of being heard by juries and magistrates provided that it is relevant to the case and can safely be admitted.
I would like to echo a remark made by the noble Baroness, Lady Howarth, in her contribution. We know a great deal more now about the pattern of offending behaviour. Regrettably, in certain specified cases it is important to know what has happened in the earlier years in order to be able better to understand how that ripened into behaviour in mature age.
Amendment No. 185 in the name of the noble Baroness recognises that Section 16(2) is a blunt instrument and proposes to lift the restriction in some circumstances but not in others. Our concern with the amendment is that anomalies will arise and that we will have added a further complex rule in an area of the law where greater clarity is required.
The amendment attempts to set out the kind of circumstances where a person's record of offending at a young age might have sufficient probative value to be admitted. We are not unsympathetic to the concern that this evidence should be admitted only where it will have a clear bearing on a case. However, we consider that there are difficulties in attempting to identify in advance all the possible situations where it may be appropriate to admit this evidence.
That is why we prefer the proposal that this kind of evidence should be subject to the careful rules and safeguards set out in the Bill. These are there precisely to ensure that evidence must be clearly relevant to be admitted, and to provide safeguards to protect the interest of defendants. These would ensure that offending that is too remote—for example, an isolated incident many years in the past—is simply not heard.
It is not, however, clear how the amendment would improve on the general scheme of the Bill. That would enable evidence to be admitted where it was relevant by showing persistent offending, or where it was evidence to correct a false impression given by the defendant by introducing evidence of his experiences under the age of 14. But it would also enable evidence to be admitted in other circumstances where it was relevant; for example, if it bore a striking similarity to later offending. On the other hand, we accept that introducing new concepts, in the way the amendment proposes, would lead to complexity and legal argument about, for example, what exactly constitutes "similarity" for the purpose of identifying,
"persistent commission of similar offences".
The debate has certainly highlighted a range of concerns with the proposal to make these convictions admissible. The arguments were persuasively put in Committee and they have been repeated today. They are real concerns and the Government recognise that there are particular considerations with the kind of convictions and circumstances covered by Section 16 that do not apply more generally.
I am therefore prepared to look further at whether the approach taken in the Bill pays sufficient regard to those factors—I hope that will give the noble Baroness, Lady Seccombe, some reward for her proper persistence—and consider whether there is a better way forward that we might suggest at Third Reading. I cannot of course give a guarantee, but I can certainly say to the noble Baroness that we think this issue is worth looking at. On that basis, I hope that the noble Baroness will be able to withdraw her amendment.
My Lords, I am very grateful for those words from the Minister. The best thing I can do is to thank her for that concern and to say that I very much hope that she can come forward at Third Reading with a proposal that is acceptable to the whole House. At this stage, I beg leave to withdraw the amendment.
My Lords, on behalf of the noble and learned Lord, Lord Ackner, and other noble Lords who have put their names to the amendment I should like to move Amendment No. 186 to delete Clause 92 from the Bill. I shall not rehearse in great detail all the arguments put in Committee.
There were five major arguments: first, that there has not been adequate consultation about the effect of this issue on children; secondly, there was no call for it in the Auld report or the Law Commission report; thirdly, it is not relevant in the light of developmental changes in children to take away their protection from this kind of evidence of bad character being submitted; fourthly, it is inconsistent of the Government in the light of the call for a clean sheet for under-18s in the Home Office report Breaking the Circle; and, fifthly, doli incapax has already been eroded in 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. In such a case, surely, there is at least a need to take account of a child's vulnerability and lack of mature judgment by ensuring that the rules of evidence are appropriate when applied to children.
As my noble friend Lord Carlile of Berriew pointed out in Committee, most children who commit crimes are in some way disadvantaged or socially excluded. That is society's fault not theirs. It is also society's fault that when they demonstrate early offending behaviour we do not intervene early enough or effectively enough to address that behaviour and turn around that young life.
Given those two key ways in which society fails these young people, it seems perverse—one of the milder words I could use—to hold against them in later life offences committed in childhood, when they were being let down by the rest of us.
In Committee, the Minister told us that this measure was an attempt to simplify the plethora of rules governing the use of previous convictions and other misconduct. I believe that child offending is a complex matter and has complex causes. The law should be able to be sufficiently highly refined to take account of that and to deliver justice. There is no virtue in simplicity when it does not deliver justice.
The Minister, in rejecting the amendment of the noble Baroness, Lady Seccombe, in Committee and again today, has talked about the fact that it would introduce an unnecessarily complex series of restrictions to the admission of such evidence. The simple answer to the problem is to leave out the clause and to return to the status quo, imperfect though it is, and try to improve it through the Green Paper consultation which is currently taking place. I beg to move.
My Lords, very briefly and as a layman, I would like to support the amendment. I think there is a large amount of opinion in the country which believes that the age of criminal responsibility is too low. It is certainly lower than it is in many other comparable countries. It therefore perhaps should be raised. The situation would be improved if the amendment were to be accepted.
My Lords, I hope that I have already made clear on speaking to the amendment of the noble Baroness, Lady Seccombe, that our view is that the general scheme in the Bill for evidence of bad character distinguishes properly between the evidence that has a bearing on the case that should be capable of admission, and that which should be excluded. We therefore consider that those provisions should apply rather than a restriction which gives rise to a number of undesirable anomalies.
I hear what the noble Baroness says about it being society's fault that young people offend. I cannot share that view. I accept entirely that many young people are placed in tragically deprived circumstances and that they succumb to bad behaviour, but by no means does every child who is so disadvantaged do that. If we say, as the noble Baroness does, that it is all society's fault, we fail to take into account that we all have a degree of responsibility for our own actions, even when we are small. However, I agree with the noble Baroness, as I have on many occasions, that the disadvantage that young people face must be addressed. They need succour, support, boundaries and assistance. With those elements in place, they have better opportunity to receive support for their good behaviour as opposed to erring in a way that we would all disapprove of.
Clause 84(3) provides a key safeguard for the admission of evidence of the defendant's bad character. We have also touched upon the courts provisions in Clause 84(4). Rather than go through all the reasons why I cannot agree with the noble Baroness, as I did in response to the noble Baroness, Lady Seccombe, perhaps it will suffice to say that the Government recognise that there are particular considerations of the kind of convictions and circumstances covered by Section 16 that do not apply more generally.
I repeat, therefore, that we are prepared to look further at whether the approach taken in the Bill pays sufficient regard to those factors and to consider whether there is a better way forward that we might suggest at Third Reading. On that basis, I hope that the noble Baroness will feel content to withdraw her amendment, notwithstanding that we have not on this occasion agreed on all fours.
My Lords, I am most grateful to the Minister for her response. However, perhaps I may respectfully correct the impression that she has gained of what I said earlier. I did not say that children's crimes are not their fault or that they are society's fault; I said that children who commit crimes are in some way disadvantaged and socially excluded, and that is society's fault. The fact that we do not intervene early and effectively enough is also society's fault; it cannot be the children's fault. I do not suggest that there is no fault associated with criminal behaviour.
Despite the warm words that the Minister has so kindly spoken on this amendment and the previous one, I am inclined to test the opinion of the House on this very important matter.
My Lords, this is rather a strange situation because the main provision was deleted on the last occasion. We received—and I have lost it among the myriad papers—a statement from the office pointing out the oddity that a main clause had been deleted and subsequent clauses depending on the main clause had remained in the Bill. That was not the only example. There was a clear lacuna that required clearing up. To remain consistent with what this House decided on the last occasion—to delete the main provision saying that hearsay should be allowed—I accordingly move to delete the dependent ones. To remind your Lordships about how we came to remove the main one, I referred again to the paper by the noble and learned Lord, Lord Woolf, which is deposited in the Library and which bore the support of all the judges in the Court of Appeal criminal division. Paragraph 23 on page 7 states:
"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".
I stress what follows:
"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 judge. 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 an appropriate manner".
It was on that basis that the main provision was removed, and I now seek to get the Bill into an intelligible form by deleting the minor planets circulating around the globe that has now gone. I beg to move.
My Lords, this amendment is grouped with Amendments Nos. 192A and 192B in my name. The purpose of my amendments to Clause 99 is to deal with the definition of fear. The conditions set out in subsection (2) that would permit evidence to be given in a statement as opposed to orally include the condition,
"that through fear the relevant person does not give . . . oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence".
My amendments attack the definition of fear in subsection (3), which states that,
"'fear' is to be widely construed".
I have no idea what that means. Fear is fear. I seek to exclude the words,
"is to be widely construed and (for example)" so that the subsection reads:
" 'fear' includes fear of the death or injury of another person".
My second objection is to the words "or of financial loss". Fear, widely construed, of financial loss could mean that a witness refuses to come to the court because, he says, he will lose a day's pay. It is as simple as that. What sort of financial loss do the Government have in mind, if it is not the loss to the witness of some financial gain that they might otherwise have received? I await the explanation.
My Lords, the debate covers two clauses: Clause 98, which defines the type of statement that will be covered by the scheme, and Clause 99, which makes provision for a statement to go in, if the witness is unavailable to give evidence. Noble Lords will know that we spent considerable time on those clauses in Committee.
It is important that the new scheme should be clear, not just about the circumstances in which an out-of-court statement will be admissible, but about the circumstances in which a statement would be considered hearsay. Clause 98 provides that clarity and limits the hearsay rule to circumstances in which the dangers associated with hearsay evidence arise—for example, circumstances in which there is a danger that a statement may be deliberately misleading. Therefore, under subsection (3), the hearsay rule would apply only if it were the purpose of the person making the statement to cause someone to believe that the matter stated was true or to act on the basis that it was true.
Clause 98 will overturn the ruling of the Appellate Committee of your Lordships' House in the case of Kearley in 1992, as the noble and learned Lord, Lord Ackner, indicated. Many of your Lordships will be familiar with the case in question. Evidence of 10 or so requests for drugs made at the defendant's house by callers on the telephone and in person was held, by a narrow majority, to be inadmissible hearsay, when tendered to prove that he was dealing in drugs. Such evidence—asking for "K" and requesting drugs—was said to have contained what is known to lawyers as "implied assertions", adduced to show that "K" was a drug dealer.
I have no doubt that it was an extremely difficult case, in which the committee was concerned to ensure fairness to the accused. However, the decision has caused much confusion and some injustice in cases involving implied assertions because, as the noble and learned Lord, Lord Browne-Wilkinson, pointed out, in dissenting from the ruling,
"Any action involving human activity necessarily implies that the human being had reasons and beliefs on which his action was based".
We recognise that it is an immensely difficult area of law, but I say, with the greatest respect, that it is illogical to exclude all implied assertions during a criminal trial, particularly those in which the risk of fabrication is low. Additionally, it is difficult to distinguish an implied assertion from direct evidence. In Scotland, as in many other common law jurisdictions, such statements have never been excluded under the rules of evidence. We are not aware that any problems have arisen as a result.
I turn now to Clause 99, spoken to by the noble Lord, Lord Thomas of Gresford.
My Lords, before the noble Baroness moves on, will she explain how the clauses, which were dependent on the clause that was struck out, can stand on their own? They were all meant to be dependent on the general proposition that the House removed.
I remember clearly that the noble and learned Lord, Lord Cooke of Thorndon, having spoken about the case to which the noble Baroness referred, was one of those who voted against the main clause permitting the hearsay. I do not have the old, unamended Bill before me, so can the noble Baroness remind us how the clause read?
My Lords, I regret to say that I do not have the old clause with me either. I have the new version of the Bill. Regrettably, I cannot assist the noble and learned Lord. I could try from memory, but I am terrified that I might fall into error. I know that, given the noble and learned Lord's usual acuity, that is an error that I dare not commit.
My Lords, in those circumstances, will the noble Baroness agree to an adjournment, so that we can see what the position is? The House ought to see the words that it deleted. They represented the entitlement, so to speak, for the clauses to follow.
I think that something is being hurriedly provided.
My Lords, I would not suggest that it is necessary to adjourn. The clauses are not dependent on the removal of the other, over-arching clause. They stand on their own, and that is why we can bring them back. I see the noble Baroness, Lady Anelay of St Johns, nodding vigorously in support of that assertion, so I know that I am on fairly sound ground.
I now have the Bill. Chapter 2 relates to hearsay evidence. The bit that we deleted was Clause 107, headed "Admissibility of hearsay evidence". It read:
"In criminal proceedings a statement not made in oral evidence in the proceedings is"— the word "admissible" is struck out—
"as evidence of any matter stated if, but only if".
If I have read the clause rightly, that it is how it will now read. The clause that we are debating can be debated in this form without difficulty. I hope that that explains the situation.
My Lords, I must ask the noble Baroness to read it out. The Explanatory Notes, which have been helpfully provided to me, read:
"Subsections (1)—(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it".
If the noble Baroness has before her, as I believe that she has, the terms of what was struck out—Clause 107—will she read it out? The beginning of the clause indicates that what follows is due to the authority given by that clause.
"In criminal proceedings a statement not made in oral evidence in the proceedings is— it read "admissible"—
"as evidence of any matter stated if, but only if" and then set out paragraphs (a), (b), (c) and (d), which provided the basis on which it would be dealt with. Subsection (2) went on to say:
"In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others . . . )".
At paragraphs (a) to (i), the Bill sets out those factors.
Clauses 98 and 99 can stand alone. As your Lordships will know, Clause 98 was entitled, "Evidence to correct a false impression"; Clause 99 was entitled, "Attack on another person's character". That is the way it is dealt with. I hope that all noble Lords present follow why there is a distinction to be drawn between those issues with which we have already dealt, and the parts with which we have not.
With your Lordships' leave, I shall reply to the comments made by the noble Lord, Lord Thomas of Gresford, in relation to Clause 99. The clause sets out the categories under which out-of-court statements will be automatically admissible because the witness is unavailable to give evidence. The noble and learned Lord, Lord Woolf—as mentioned by the noble and learned Lord, Lord Ackner, on previous occasions—has concerns with the approach that we have adopted. He has suggested that something simpler is needed, akin to the civil rules of evidence. The Government are always willing to listen to suggestions for improving the clarity and effectiveness of legislation. We also agree that the courts should have greater discretion to admit hearsay. However, a complete relaxation of the hearsay rule, as in civil proceedings, would be appropriate for criminal cases.
Therefore, if Parliament were to decide not to codify those categories, the courts, in their appellate capacity, would be bound to develop rules on these issues. Practitioners would have to become familiar with relevant and possibly complicated case law. That approach also assumes that there would be little conflict with the authorities in such cases. It is an assumption which we do not believe we could safely make, given the problematic way in which that area of law has evolved so far. Thus, there are arguments against the uncertainties of a wholly discretionary approach and in favour of a code which seeks to build on recognised categories in current law, but stating them in a comprehensive and coherent fashion, accessible to all and capable of straightforward application, seems to be one of the measures for which a number of people have been crying out for a long time.
Clause 99 also makes provision for the use in evidence of an out-of-court statement, with leave, where a witness is frightened. Amendments Nos. 192A and 192B seek to remove part of the definition of "fear" and the example of financial loss. The wording of the clause is in terms used by the Law Commission in their draft Bill and reflects its conclusion that the courts should have a wide discretion to admit statements where witnesses are frightened to give evidence.
In Committee, the noble Lord, Lord Carlisle, queried whether use of the term "widely construed" has statutory precedence. A search of legislation has not identified anything similar, but it would still be desirable to retain it. Without it, witnesses may not receive the protection which we would want to provide. For example, an elderly or vulnerable witness, who has a brick thrown through the window because he or she is co-operating with the police, may not face a threat to their life. But the court should be able to look at "fear" through the eyes of the witness and should have a wide discretion to admit an out-of-court statement where it is in the interests of justice to do so. Perhaps I may make it clear; this is not about losing a day's pay to go to court, as alluded to by the noble Lord, Lord Thomas of Gresford. It is about genuine fear.
Let us take a case, for example, involving the robbery of a local corner shop where the shop owners are threatened by a local gang. If they give evidence in court, the gang will ensure that their customers never buy from them again. Their entire livelihood and all that they have worked for is at stake. The effect of the amendments would mean that the courts would be able to hold that financial loss was not what was intended to be covered by Parliament. Their statements would be inadmissible even though it may be in the interests of justice for them to go in. That is highly undesirable: the reluctance of witnesses to give evidence through fear is a serious problem for the criminal justice system, which I know that the noble Lord acknowledges. The courts should not be prevented from admitting a statement from a frightened witness where it is in the interests of justice just because it is unclear whether it is the right type of fear.
With those comments, I hope that the noble and learned Lord will withdraw his amendment and that noble Lords will feel content that Clauses 98 and 99 should stand part of the Bill.
moved Amendment No. 194:
Page 64, line 20, leave out from "not" to "or" in line 21 and insert "obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003"
My Lords, these are minor consequential amendments to take account of the repeal of Section 3 of the Criminal Justice (International Co-operation) Act. Amendment No. 194 updates the reference to Section 3 of the 1990 Act to refer to Section 7 of the Crime (International Co-operation) Act 2003. Noble Lords will know that that Bill has now received Royal Assent. Amendment No. 196 deletes the consequential amendment to Section 3 of the 1990 Act contained in Clause 119(2) of the Criminal Justice Bill.
The remaining amendments in the group are mainly technical consequential amendments to take account of the way the Crime (International Co-operation) Act and this Bill interrelate. Amendments Nos. 243 and 245 make minor corrections to errors in the repeals Schedule. I beg to move.
My Lords, Amendment No. 195 seeks to leave out Clause 104, which concerns, and is entitled, "Multiple hearsay". Noble Lords will remember that in Committee, an amendment moved by the noble and learned Lord, Lord Ackner, the then Clause 107, entitled, "Admissibility of hearsay evidence", was removed from the Bill. That vote left the present Clause 104, entitled, "Multiple hearsay" in an uncertain position, which appears not to fit with the rest of the Bill.
In Committee, the dangers of hearsay were clearly laid out. We heard how a single hearsay may be inaccurate, misguided or even fabricated, how it is difficult to challenge and how it cannot be tested on oath; essentially, that hearsay is a highly flawed source of evidence. Multiple hearsay takes that one step further. All the hazards exist, but are accentuated.
The Government's proposals to relax hearsay laws or what, in my non-legal terms, amounts to second-hand information, caused widespread concern among many Members of the Committee. Easing the admissibility of third, fourth or fifth-hand information, which is what multiple hearsay truly represents, surely exacerbates that concern further. For all those reasons, the relaxation of the multiple hearsay admissibility of rules is undesirable. As we heard in Committee, under present regulations multiple hearsay is not admissible as evidence in criminal courts except in exceptional circumstances. The noble Baroness discussed in Committee (at col. 1132 of the Official Report on 18th September) the most common example of its use in the criminal court, when she said that Section 24(2) of the Criminal Justice Act 1988 already allows the admissibility of multiple hearsay in business documents which have passed through the hands of several people. We felt that her dismissal of our argument against multiple hearsay on the grounds that this would also lead to the loss of the provision before us bordered on the illogical, bearing in mind that Section 24(2) is a unique exception—I should say "an unique" exception—to the rule and is not in any case one that we wish to displace.
It is not this small and even insignificant clause with which we have issue, rather it is the approach of the Bill to make the criminal law in these circumstances similar to civil law, where all evidence is primarily admissible and then sifted for relevance. That is what we wish to displace.
Many noble Lords will have received the briefing from Liberty, which emphasised:
"The criminal law is not the same as the civil law because there is not the same sanction. The convicted defendant in a criminal trial faces loss of liberty and there is a strong likelihood of miscarriages of justice occurring if hearsay is relaxed".
In our view, the presumption should be not towards accepting potentially unreliable evidence; the ensuing pitfalls have been spelt out repeatedly. Multiple hearsay should be admissible in criminal courts only under very limited and regulated circumstances and, as a natural consequence of "admissibility of hearsay evidence" at Clause 107 being struck from the Bill. Clause 104 in the present Bill should suffer the same fate.
Meanwhile, the world has been moving on. I thank the noble Baroness for the meeting she had yesterday evening with my noble friend Lady Anelay and the noble Lord, Lord Thomas of Gresford, to discuss the revised government proposals for multiple hearsay. I apologise to the noble Baroness for not being able to be present myself.
The Government have now put forward a proposal to redraft Clause 104, and part of that redraft appears to be acceptable. We accept that new subsections (1)(a) and (b) codify the existing practice regarding the admissibility of multiple hearsay. We also accept that the Government have made a constructive attempt to draft the third part of the new clause, subsection (1)(c), to cover those exceptional circumstances in which a court may decide to admit multiple hearsay in other cases.
However, the problem is that this first attempt on the part of the Government to redraft the exceptional circumstances case is too vague and needs to be more narrowly drawn to be acceptable. I understand that the Government have agreed to look again at the redraft of Clause 104 and that, as a consequence, agreement may be achieved on this matter.
I invite the Minister to set out the Government's case in her response and confirm that the Government are prepared to continue discussions about the redrafting of Clause 104, along with their revised proposals, if any, for single hearsay—old Clause 107. If the noble Baroness is able to satisfy us on those two points, I can signal now that we shall not seek to divide the House on Amendment No. 195. I beg to move.
My Lords, I have already spoken at length about the fundamental objection to multiple hearsay. If multiple hearsay is to be used as evidence of the facts, then it is impossible to challenge it.
I shall not weary the noble Baroness further because she knows of my objection. I also thank her for our discussions this morning. Perhaps the noble Lord, Lord Hodgson, could have attended the meeting if he had known about the change of time. I look forward to a fruitful outcome of those discussions.
My Lords, I thank the noble Lord and the noble Baroness for the co-operative way in which they have addressed these issues. These meetings undertaken by all sides have proven to be very fruitful, providing an opportunity for us better to explain to each other the differences that were made clear in Committee. So I can make the confirmation indicated by the noble Lord, Lord Hodgson, in moving the amendment.
The purpose of Clause 104 is to limit the circumstances in which an out-of-court statement will be admissible when it is considered to be multiple hearsay; in other words, it is there to prevent so-called "tittle-tattle" going in as evidence.
I am very sympathetic to the concerns that the rule, as it is currently expressed in the Bill, is difficult to understand. I have been persuaded by noble Lords that the clause is insufficiently clear, but removing it from the Bill entirely would have the effect of leaving no rules to govern admissibility of multiple hearsay, thus leaving it subject to no safeguards at all. I know that noble Lords join me in not wanting that as a consequence.
In other words, by removing the clause, it would become possible for a chain of out-of-court statements to go in as evidence where each statement in the chain qualifies for admission in its own right, such as when a statement made by someone who has subsequently disappeared includes details of a statement made by someone who has died. We are, I believe, all agreed that multiple hearsay of this kind is inherently more dangerous and unreliable than first-hand hearsay, where the speaker has personal knowledge of the fact stated.
Clause 104 is taken from the Law Commission's draft Bill on hearsay. As noble Lords know, that reflects the commission's conclusion that most multiple hearsay is too unreliable to be admitted as evidence, but some of it can safely be used, such as when it is in business documents, while some should be admissible where it is sufficiently reliable and would prevent injustice
The problem with the clause appears to be that the circumstances in which this would happen are not expressly stated. I recognise that this would make it difficult for practitioners to operate the scheme. We have therefore been giving some thought to how we can redraft the clause to achieve greater transparency so that everyone can understand when it could be admitted. Such a clause would also reflect appropriate safeguards in relation to the admissibility of this kind of hearsay. I propose to bring forward a revised clause at Third Reading with the aim of trying to address the concerns expressed by noble Lords. I shall let noble Lords have sight of it in advance; that is, as soon as it is made available to me.
This revised clause will make clear that Clause 99, which allows evidence to be admitted where a witness is unavailable for good reason, will not operate to allow a chain of such statements to be admissible. However, where the hearsay is admissible in a reliable form, such as in a business document or in a previous statement of a witness who is in court to give evidence and can therefore be questioned on the statement, we consider that the evidence should be admissible.
In the light of that reassurance, I hope that your Lordships will feel content to let Clause 104 stand part of the Bill.
My Lords, I am extremely grateful to the noble Baroness. She has certainly fulfilled all that I asked for in my remarks. We look forward to hearing about the progress of further discussions on the redraft. In the mean time, I beg leave to withdraw the amendment.
My Lords, we now return to what is now Part 11, covering all the issues around sentencing. In Clause 125, the Government propose to set out in statute the purposes of sentencing. The clause states that the court must "have regard to" those purposes when it comes to deal with an offender. My amendment would change the words "have regard to" to,
"is under a duty to consider".
I note that my noble friend Lord Carlisle of Bucklow is in his place. The reason I tabled this amendment was as a result of listening carefully to my noble friend's contribution in Committee. I thought that it was important to return to the comments he made on that occasion. My noble friend said:
"No part of the clause says what weight is to be given to any of the particular purposes of sentencing. One might perhaps say something like, 'have in mind the following purposes of sentencing', or, 'must be aware of the following purposes of sentencing', rather than, 'must have regard', which implies that any sentence must meet all those six purposes when they may in some cases be self-contradictory".—[Official Report, 6/10/03; col. 47.]
As my noble friend said, the Bill gives no guidance to sentencers as to how the various factors are to be weighed, especially where they may be in conflict. The implication of the words "have regard to" is that any sentence must meet all six purposes which, in practice, may be impossible. That is why I have brought forward an amendment which makes it clear that the purposes of sentencing in the Bill are to be considered by the courts but that they are not under a duty to meet all of them in any particular case.
The Minister said:
"It is right that, when a sentencer comes to consider the sentence, all those factors are born in mind".—[Official Report, 6/10/03; col. 49.]
If my amendments are accepted, the purposes of sentencing would still have to be born in mind, as the Minister requires, but the potential difficulty of the words "have regard to", to which my noble friend Lord Carlisle drew attention, would be removed.
If the Government are minded to reject my amendment today, I suggest that they may need to spell out to the House in some detail how they propose that sentencers should approach the task given to them under Clause 125. That request is also made by Justice in its briefing to the House. What should sentencers do when they are of the view that one or more of the purposes are in conflict?
"It will be up to sentencers to determine what weight to accord to each in a particular case".—[Official Report, 16/6/03; col. 561.]
If that is the Government's approach, why can it not be made clear on the face of the Bill? I beg to move.
My Lords, Amendment No. 179A is grouped with the amendment. We were much impressed by the representations made to us by the Prison Reform Trust. The proposal to define the purposes of sentencing in legislation is the cornerstone of the sentencing framework and obviously requires very close scrutiny.
The construct in Clause 135 provides for a "pick 'n' mix" approach to sentencing, with no single underpinning philosophy coming to light. As such, it will prove over reliant on a mass of guidance in its search for coherence and consistency. We much prefer the model outlined in the Halliday report, which referred to the "desert" theory. This emphasises the need to link severity of punishment with seriousness of offence and culpability of the offender so as to be proportionate and commensurate. The desired outcomes of consistency, and therefore fairness and justice, dominate in this model. Fixing levels of severity in relation to levels of seriousness is a very key issue.
Justice has also made representations to us on this issue. It said that the Halliday report noted these findings and others and also noted the weakness of the evidence in favour of the incapacitative effect of sentencing, and hence the proposal that neither deterrence nor incapacitation should be relied upon as a justification for sentencing.
Our proposal would retain the primary overall aim of the youth justice system—the prevention of offending by children—while reinforcing and clarifying the necessary safeguards for children and better compliance with children's human rights obligations. If accepted, the amendment would ensure that, when passing sentence, the courts would have regard to the welfare of the child in order to best respond to their vulnerability. Those are the reasons for the amendment.
My Lords, my noble friend said that the amendment was based on something I said in Committee. I am grateful to her for that comment. I am afraid that I cannot now bring to mind immediately what I said in Committee, but it is clear—and this is what I must have said—that the matters referred to in Clause 125(1) can be self-contradictory. It is wrong that the court "must have regard to", for example, the punishment of offenders because that may be contradictory to being required to have regard to the reform and rehabilitation of offenders and the court could be drawn in two different directions. I suggest that it would be better if the word "must" should be discretionary or replaced by the word "may", as the amendment proposes. I hope I have correctly repeated what I said in Committee—my noble friend will tell me—and I therefore support the amendment.
My Lords, from my memory, the noble Lord has correctly repeated what he said in Committee. However, I do not agree with him. It might be easier if the House could take as read the comments I then made in order to avoid noble Lords having to hear them all over again.
Amendment No. 197 seeks to make what, at first flush, appears to be a minor drafting change to the clause setting out the purposes of sentencing. It would place any court dealing with an offender in respect of his offence under a duty to consider the purposes of sentencing. The current drafting which sets out that a court "must have regard" to these purposes is considered to be preferential because it is consistent with the drafting of other provisions in Part 11 of the Bill and has a certain synergy. For example, Clause 154(1) states that in sentencing an offender every court must have regard to any guidelines which are relevant to the offender's case.
I hear what is said about the difference between the conditions and that they may pull in different directions— but that is what judgment is about. If one of my noble friends was on the Back Benches now—I do not see him in his place—he would say that this is typical of a lawyer's "on the one hand and on the other hand". He is always seeking a one-handed lawyer. The court will have to take into consideration different features and factors which may pull in different directions and come to a conclusion as to how they can be balanced.
Amendment No. 197A, standing in the name of the noble Lord, Lord Dholakia, repeats an amendment tabled in Committee which seeks to replace the purpose of punishment with one which refers to the holding of offenders to account for their offences. I understand the genesis of that from the Prison Reform Trust. I hope to be able to explain why the Government believe that what is in the Bill suffices.
I hope the House will forgive me if I reiterate that we prefer our drafting because "punishment" is a better recognised and more widely used definition of one of the purposes of sentencing. We also believe that it better conveys that sentencing is about the loss of liberty, property and other rights and freedoms and that it is necessary to achieve crime reduction, the rehabilitation of offenders and reparation. Indeed, the goal must be to achieve punishments that work as well as they possibly can in terms of crime reduction and the satisfaction of victims and communities. The word "punishment" achieves that in a better way.
With that explanation, I hope that the noble Lord, with his usual understanding and good grace, will not press the matter further.
My Lords, I am grateful to the noble Baroness for elaborating on the explanation she gave in Committee and adding very effectively to it. I certainly accept her assurances in this regard although I still agree with my noble friend Lord Carlisle of Bucklow that it will be very hard for sentencers to balance this "on the one hand and on the other hand" factor. It will be a matter of judgment.
I am not too surprised that my noble friend Lord Carlisle of Bucklow was not able to cast his mind back immediately to the beginning of October to recall his words. The fault is all mine—when we talked earlier today about how far we might get, I gave him what can only be called, in colloquial language, duff information, because we did not expect at that juncture to reach sentencing. However, we have gone like an express train today and have therefore reached this part of the Bill. Those who attack lawyers for going on endlessly were wrong on this occasion. My noble friends were succinct to the point of virtue, so we got further than the Government expected. I beg leave to withdraw the amendment.
moved Amendment No. 197B:
Page 78, line 35, at end insert—
"(6) Treatment of previous offending as an aggravating factor under subsection (2) is to be interpreted as permitting the imposition of a more demanding sentence within the band of community or custodial seriousness, but it does not permit—
(a) a current offence that is, on its own, defined as "not serious enough" to warrant a community disposal to become suitable for a community sentence;
(b) a current offence that, is, on its own, defined as "serious enough" to warrant a community disposal to become suitable for a custodial sentence;
(c) a current offence that is already "so serious" or defined in statute as requiring sentencers to pass a custodial sentence to increase the length of the custodial sentence that would otherwise be passed."
My Lords, we had a considerable discussion on this amendment at an earlier stage. I do not object to raising some of the issues again because the impact of sentencing on the prison population is considerable.
There is a grave danger that the content of the clause will lead to a major and costly escalation in severity of sentencing. This is contrary to the other sections in the Bill where it is specified that only the current offence should be used to determine whether an offence is serious enough to warrant a community disposal or so serious that only a custodial sentence is justified.
In addition, the generic community sentences introduced by Chapter 2 create a risk that sentencers will be reluctant to make repeated use of community sentences for the same offender. This could considerably shorten the path to prison for many moderately persistent offenders whose offences would not otherwise justify a custodial sentence. Our amendment is designed to rectify this situation. I beg to move.
We have made a clear policy decision to move away from the current position in which the court is simply required to take into account any previous convictions to the position set out in this clause, where recent and relevant previous convictions must be treated as aggravating factors.
Persistent offenders must know that they will be dealt with progressively more severely each time they offend. This does not mean that wildly disproportionate sentences will result. Sentencers will, of course, operate within the principle that the severity of the resulting sentence should reflect the seriousness of the current offence. The clause simply modifies the proportionality principle so that previous relevant offences can act as an aggravating factor.
I remind the House of what quite often happens. You look at the maximum sentence and then ask what discounts should be given because of the factors in the case, so down it comes. We are saying that because we are creating a new fabric around the sentencers so that they can use those sentences more flexibly, it should be understood by defendants who come before the court that the court will try to target their offence and the offending behaviour, the root causes underneath it, and will work with them. However, if they do not respond in a positive way, the court has an option to treat them progressively more robustly if circumstances demand. However, that does not mean that sentencers should be able to use the full panoply of sentencing tools available to them under the Bill as previous convictions lead them progressively up the sentencing scale. So while custody and longer periods of custody are not intended to be the immediate impact, instead the courts could put together a variety of different interventions as part of a community sentence or impose a suspended sentence. They may well need to move between sentencing bands, and Amendment No. 197B would prevent them from doing so.
That flexibility will, we hope, inure to the benefit of the defendant, who has to have this behaviour addressed. However, noble Lords should be reassured that the Sentencing Guidelines Council is required, under Clause 152(7), in drafting guidelines to include criteria for determining the weight to be given to any previous convictions of offenders so that they will set out in guidelines the extent to which the severity of sentence could increase in relation to what the previous convictions were and the nature of the current offence. We therefore do not set out any restrictive criteria in statute, as proposed in the amendment. It will be up to the Sentencing Guidelines Council to spell out the effect of the principle in Clause 126.
With that explanation, I hope the noble Lord will be satisfied that if the court feels in all the circumstances of the case that a proper, targeted community sentence is justified within the meaning of these provisions, it will have the opportunity to impose that. We said earlier that community sentences can be targeted at different forms of offending behaviour, and I am sure the court will be able to take those factors into consideration when deciding whether it is or is not appropriate to mark the increasing seriousness of offences by using or not using community sentences.
My Lords, I am grateful to the Minister and thank her for her explanation. Although I may not win the argument today, I am seriously concerned about the prison population, particularly our young people. Perhaps in six or eight months' time I will get up again and say that I said so. In the mean time, I beg leave to withdraw the amendment.
My Lords, I believe that noble Lords taking part in the Unstarred Question have been given revised timings for speaking, should they wish to avail themselves of the extra time.