Clause 106, The Commons insist on their disagreement to Amendments Nos. 114 to 119 and 121 to 131 but propose the following amendments to the words so restored to the Bill—
131C Page 60, line 37, leave out from beginning to "evidence" in line 2 on page 61 and insert— "References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than"
131D Page 62, leave out lines 16 to 18
131E Page 62, line 26, leave out "(d),"
131F Page 63, line 19, at end insert:— "(1A) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged. (1B) Subsection (1A) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
(1C) For the purposes of subsection (1A)—
(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (1D) A category prescribed by an order under subsection (1C)(b) must consist of offences of the same type."
131G Page 64, line 40, leave out from "a" to end of line 41 and insert "reprehensible way"
131H Page 65, line 47, at end insert:— "(2) In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is admissible only if the court is satisfied that the interests of justice so require.
(3) Subsection (2) applies in addition to section 93."
131I Page 66, line 28, leave out "require a defendant" and insert ", and, where the party in question is the prosecution, must, contain provision requiring a party"
131J Page 66, line 29, leave out "co-defendant's bad character under section 93(1)(f)" and insert "defendant's bad character"
131K Page 66, line 33, leave out "co-defendant" and insert "defendant"
131L Page 66, line 35, leave out "co-defendant" and insert "defendant"
131M Page 66, line 39, leave out "defendant" and insert "party"
131N Page 67, line 26, leave out from "means" to end of line 29 and insert "the commission of an offence or other reprehensible behaviour"
131O Page 67, line 42, after "Chapter" insert "(except section 93(3))"
131P Page 67, line 45, at end insert—
"(a) under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18) against a party impeaching the credit of his own witness by general evidence of bad character,"
131Q Page 67, line 47, after "(c. 23)" insert "(restriction on evidence or questions about complainant's sexual history)" Clause 106, The Commons have made the following consequential Amendments to the Bill—
131R Page 171, line 30, leave out "95" and insert "96"
131S Page 217, line 8, leave out "95" and insert "96"
131T Page 217, line 9, leave out "(1)" and insert "(1C)"
My Lords, I beg to move that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T.
Noble Lords will recall that, when the matter was last before your Lordships' House, the Law Commission's draft on the amendments supplanted the previous ones, since when we have proposed certain amendments to that clause. This is very familiar territory. In this part of the Bill, we seek to reform the rules dealing with evidence of bad character and to set them on a consolidated and coherent basis for the future. Essentially, amendments accepted in this House, and on which this House has insisted, would replace the Government's proposal with the scheme drafted by the Law Commission.
We have had extensive debate on the issues involved. I hope that I have explained the extent to which the Government have drawn on the Law Commission's work. Nevertheless, it has proved extremely difficult to reach an agreement on exactly what form the statutory scheme should take. The Government propose an inclusionary rule, under which relevant evidence would be admissible subject to inclusion in the interests of justice.
Such rebalancing is necessary to ensure that the courts have the evidence and material that they need to determine the issues in the cases. However, there are clear safeguards to ensure that the interests of defendants are protected and trials remain fair. I outlined those at length during the previous debate on them.
The Government have also gone to great lengths to meet concerns about how the proposals would operate. They are reflected in the amendments proposed by the other place. They include a tighter definition of evidence of bad character, a clear requirement for the prosecution to give notice of their intention to rely on a defendant's record and making clear that juvenile convictions are to be admitted in adult proceedings unless the interests of justice require them to be admitted.
We have also sought to address concerns about the operation of Clause 93(1)(d)—the presumption that convictions for the same, or a similar, offence should be admissible. We have done so by bringing the presumption under the category of evidence relevant to the issues in the case. In doing so, we have created a closer link between that evidence and the question of propensity.
The amendments that we have tabled further clarify our intent that relevant evidence should go before the court but there is perfectly proper opportunity if that evidence is considered to have more prejudicial than probative value for it to be excluded on the discretion in exercise by the judge.
Moved, That this House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T.—(Baroness Scotland of Asthal.)
rose to move, as an amendment to the Motion that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T, leave out from "119" to end and insert ", 122 to 125 and 127 to 131, do agree with Commons amendments 131C to 131G and 131I to 131T, but do insist on its Amendments Nos. 121 and 126 and do disagree with Commons Amendment No. 131H".
My Lords, for technical reasons, the amendment tabled by the noble Baroness, Lady Walmsley, and our amendment have been grouped. I shall speak, telegraphically, to Amendment No. 121, and the noble Baroness, Lady Walmsley, will speak to Amendment No. 126. Also for technical reasons, there will be a single vote. Had there been separate votes, we would have abstained from voting on the noble Baroness's amendment.
Amendment No. 121, which would delete Clause 96, represents a substantial concession to the Government. By ceding the Law Commission's draft Bill, we, with deep reluctance, abandoned our commitment to an exclusionary presumption. There remained therefore only the issue of propensity evidence in Clause 96. In a spirit of co-operation, we hoped, and continue to hope, that a solution will be found in another place.
Moved, as an amendment to the Motion that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T, leave out from "119" to end and insert ", 122 to 125 and 127 to 131, do agree with Commons Amendments Nos. 131C to 131G and 131I to 131T, but do insist on its Amendments Nos. 121 and 126 and do disagree with Commons Amendment No. 131H.—(Lord Kingsland.)
My Lords, in rising to support the amendment moved by the noble Lord, Lord Kingsland, I shall also speak to Amendment No. 131H. I am returning to this matter because I feel so strongly that this is such a thoroughly bad Bill in respect of justice for children, for four reasons. First, Amendment No. 131H waters down a crucial immunity which children deserve because of their special status—that of having convictions used against a defendant in court which were committed when, in all other civilised countries, the child would have been below the age of criminal responsibility. Secondly, the Bill racks up sentences for children and enshrines minimum sentences in statute. For example, a 10 year-old can be given 12 years for murder. Thirdly, it brings children into the criminal justice system inappropriately in situations that would have been better dealt with in other ways through other agencies—in the drug testing provisions, for example. Finally and most fundamentally, the Bill treats children as miniature adults instead of what is needed in order to ensure justice for children, which is to enshrine the welfare of the child in the criminal justice system. For those four and many other reasons I support the amendment moved by the noble Lord, Lord Kingsland.
My Lords, I have listened to the telegraphic comments of the noble Lord, Lord Kingsland. I understand that he proposes to accept a majority of the Government's proposals, but that this House insists on its disagreement to two provisions. The first makes it clear that evidence of propensity can be given in a case and such evidence is already admissible in certain circumstances. However, this area of the law is complex, as I hope the noble Lord accepts. We have therefore given this issue a lot of consideration and we consider it desirable to make it clear in the Bill.
The second relates to lifting the absolute prohibition on admitting juvenile convictions in adult proceedings, which is a matter to which the noble Baroness, Lady Walmsley, has spoken. I have taken into account, as on every occasion, the concerns that the noble Baroness rightly has that things must be done in the best interests of children. The noble Baroness will know that we on the Government Benches very much share her concern and the desire to ensure that there is proper differentiation and recognition for the vulnerability of children and the differentiation that comes with age. We have already offered substantial movement on that issue by introducing an amendment that proposes that convictions should be admitted only when the interests of justice require that to happen. We believe that that strikes the right balance. In the interests of justice, there are some cases involving children in which such matters should be heard.
Noble Lords will know that we have shown considerable flexibility in pursuing our proposals. We believe that they constitute a sensible and coherent whole. I therefore urge this House to resist the noble Lord's Motion and to allow the amendments that have been properly passed by the other place to stand.
My Lords, although propensity evidence has always been admissible in circumstances in which the defendant attacks the prosecution's good character, it has never been admissible as an issue in the case. That is the source of the fundamental difference between the Government and ourselves as the noble Baroness knows well. In those circumstances, I would like to test the opinion of the House.