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4 Dec 2002 : Column 955—continued

The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): Robert Brown.

Miss Widdecombe: Indeed. That case came to light only recently.

I am sure that the Minister will understand that if people who have been convicted persist in denying their guilt, they are deemed not to have addressed their offending behaviour and therefore not to have satisfied a necessary criterion for release. That means that the small handful of people who have been wrongly convicted and who face substantial sentences have no hope while they persist in their innocence. Although I accept that there is no quick and easy solution, because we do require people to address their offending behaviour, that rule needs to be reconsidered because we have had not one but two cases in which people have served huge sentences, and in Stephen Downing's case it was 27 years.

The Bill contains a measure to release criminal records to juries before a verdict. That is an extremely unwelcome development. The circumstances in which it can happen at the moment are limited and are especially relevant when a co-defendant might be prejudiced if the information is not available. However, the proposed widening of that rule will have extremely dangerous implications. Juries on the whole are diligent. Like many other hon. Members, I have sat on a jury. I was involved in a series of trials in the Crown court and remember that we were told not once, but twice to disregard things because they should never have been said. We may have been saintly and tried as hard as possible to ignore those comments, but we had heard them.

In one case, a damaging piece of information was slipped in by a clever lawyer. We found out that although the man before us was pleading not guilty, a co-defendant had pleaded guilty. It was not the sort of crime in which one could be guilty and the other could be not guilty. They had either both done it or neither had done it. The judge told us to disregard the comment, but we knew. In our deliberations thereafter, no matter how hard we tried to carry out an academic exercise in weighing up an argument without that information, it came up time and time again. Only a jury of saints and angels could say, XBut they still have to prove that he committed this particular crime", and not allow a long list of previous convictions to give weight to their decision.

It is a central tenet of our justice system that someone must be proved guilty beyond all reasonable doubt. When a person sits in the dock, he is innocent of the

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crime that is attributed to him until it has been proved beyond all reasonable doubt, irrespective of his previous record. If a person has done nine burglaries in the past three years, it does not follow that he is guilty of the 10th. I see the Minister writing and I know what is about to come. If a person has committed acts of domestic violence it does not follow that they have committed the act of which they stand accused.

Suppose, for example, that a man had committed two assaults on his wife, and on the second occasion the judge said to him, XThis is a very serious matter and if you come before the law again you will face a custodial sentence." It is possible that if relations with his wife continued to deteriorate, quite understandably in the circumstances, she might be tempted to say, XI am going to get rid of you for some time. I shall say that you hit me." The jury could then be told that the man was in the habit of assaulting his wife. I submit that it is impossible to maintain the view that somebody is innocent if we load the dice against them by laying open their past offences.

Mr. David Kidney (Stafford): Will the right hon. Lady give way?

Miss Widdecombe: I will, but I want first to respond to a specific point made by the hon. and learned Member for Dudley, North (Ross Cranston) which is relevant to what I just said. He said that already, in juries' minds, if good character is not adduced there is an awareness that something is amiss and that the person must have erred before. That is true, but they do not know what that person has done. If a person has a 20-year-old conviction, which under the Rehabilitation of Offenders Act 1974 is long since spent, they cannot be said in court to have a good character. The jury has no clue as to the seriousness of the offences indicated by the omission of good character. This provision is not at all the same—juries will be given that information.

Ross Cranston: Will the right hon. Lady give way?

Miss Widdecombe: Yes, but first I must give way to the hon. Member for Stafford (Mr. Kidney), as I promised.

Mr. Kidney: I was struck by the right hon. Lady's example of the jury who, according to the rules, should not have known that the co-accused was pleading guilty to the offence, a fact that was very material to their considerations, as she told us. In view of that, is she satisfied that the existing rules are perfectly adequate?

Miss Widdecombe: No, but there is no need to make them worse.

Ross Cranston: The point is that I said that the jury might know that a defendant had previous convictions, but they might not have appreciated that fact. However, is not the right hon. Lady's point an argument to the contrary, in that it may help the jury to know the specific offences committed by a defendant rather than simply to be left in the dark about how serious or trivial those previous convictions may be?

Miss Widdecombe: No, I do not agree. The burden must be on the prosecution to prove beyond all

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reasonable doubt that a particular crime, not a type of crime, was committed by a particular person. That must be the touchstone in determining whether a person is innocent or guilty.

I do not think that one can reasonably put before a jury a long record of similar offences and not expect that to be taken strongly into account, even if it affects only the jury's attitude, because of course juries do not make decisions simply by weighing facts; they are directed to consider the bearing of a person and which version of events they prefer. A certain amount of gut instinct applies in jury deliberations, as I am sure the hon. and learned Gentleman is aware. Once a material fact about previous convictions has been thrown into the cauldron, it is difficult for the jury to lay that to one side and simply consider whether or not the defendant committed the crime in question.

I also submit, in the short time available to me, that this provision is an invitation to sloppy policing. It will allow the police to think that a defendant has a record as long as their arm, so a jury will not be sympathetic and they are more than likely to convict because they will not think that they are doing much damage—the accused is a criminal anyway and is likely to commit another crime at some point.

It must be central to our justice system that one comes to court as an innocent person, no matter what one's past record, and a case is made meticulously, beyond all reasonable doubt and not on the balance of probabilities, that one committed a particular crime. If that principle is not adhered to, we will be giving up a major and important civil liberty.

6.34 pm

Mr. Brian Sedgemore (Hackney, South and Shoreditch): I must confess that until today I had not considered the right hon. Member for Maidstone and The Weald (Miss Widdecombe) one of life's civil libertarians, but it just goes to show that there is hope of redemption for us all because I enjoyed the whole of her speech. It will not do her any good, but there we are.

The Home Secretary was so emollient that there were times when I wanted to scream. Who put the real Home Secretary into a box, gift wrapped it and labelled it, XMerry Christmas to you all"? What happened to the Rottweiler that eats lawyers for breakfast, lunch, tea and dinner?

I went through the Bill carefully and searched its every clause and subsection for a guiding principle, but I could find none. I then dug deep for any enduring values that might have enthused its progenitors, but there were none. Maybe, I thought to myself, this Bill has been inspired by noble ideas, ancient and modern. Alas, I was disappointed again.

Eventually, the secret behind the Bill emerged in the newspapers. The Bill, so the spin-meisters told journalists, is designed to refocus the criminal justice system in the interest of victims. As Labour Members have said, that is nonsense. The Home Secretary is also reported to have said that the Bill will push up the conviction rate, and that is even worse nonsense. If, indeed, he really wanted to introduce legislation significantly to push up the conviction rate, and I am not advocating this, he would need to abolish our

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adversarial system of justice and, with it, the presumption of innocence. Let us all pray that he does not read this speech tomorrow.

My complaint about the Home Secretary's approach, and it is a serious one, is that where there is a clash, as there often is in these cases, between utilitarianism and individual rights, the Home Secretary always comes down in favour of utilitarianism. I shall develop that argument in a moment. Throughout the Bill, he wages war on liberty in certain important respects with the determination of the zealot and the understanding of one who has forsaken the scales of justice for the dead weight of popular prejudice.

Let us take, for example, trial by jury. Everyone knows that removing the right to trial by jury, whether in the old plans, the new plans or the plans that will be introduced in the next Session, will lead to more innocent people being convicted, but no one has yet been able to explain to me how convicting the innocent helps the victim. On the contrary, it shows a contempt for victims that beggars belief. It is a cruel deception on victims born of political psycho-babble, of which we get all too much from the Home Office, as we can see from its list of Bills since 1997.

My hon. Friend the Member for Wirral, West (Stephen Hesford) asked the shadow Home Secretary whether there is a point of principle about jury trials. There is indeed a point of principle about jury trials, which is explained concisely and lucidly by Lord Scott of Foscote in his judgment in Grobbelaar v. News Group Newspapers Ltd. and Another—the case of the cheating goalie—when he said:

One cannot get a much better principle than that: protecting the citizen from unfair and oppressive prosecution.

As has been said, the argument about the limited number of cases is not good in logic, and I have a nagging doubt that once we open the door, we may see other such Bills. Of course, we know in this case about the Home Secretary's previous bad character and previous convictions. He is, after all, the person who came before the House barely a year ago and told us that we need not worry because he was going to abolish jury trials only for lesser offences. Now he comes here and tells us that we do not have to worry because he will abolish jury trials only for a few very serious offences. I dare say that following next year's Queen's Speech he will say, XAll I have in mind is the abolition of jury trials for middle-ranking offences." The Home Secretary, I suspect, may agree with Lord Thomas Denham, a man of no consequence and little intellect, who said in his judgment on O'Connell v. the Queen 150 years ago:

Lord Denham, an authoritarian by nature, was concerned, as the Home Secretary may sometimes be, about the fact that juries have independent minds that cannot be controlled by the Executive or judicial elites—thank God for that, say most of us.

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According to the philosophy of an acerbic 18th century writer of letters, whose identity was hidden behind the soubriquet XJunius":

Some say that Junius was Edmund Burke, others that he was Lord Shelburne, but I believe that he was our current Home Secretary in an earlier incarnation. Some of the Bill's provisions, including those on admitting prejudicial hearsay evidence and accounts of bad character, including the defendant's previous acquittals, come into Junius's category of causing injustice to individuals in the interests of some unstated higher good. We should challenge the Home Secretary on what higher good he is seeking to achieve in the Bill.

Sadly, the Home Secretary's predilection for the philosophy of Junius was evident in the Anti-Terrorism, Crime And Security Act 2001, in which he paved the way for locking up foreigners indefinitely without charge, trial or sentence. Once a Home Secretary starts to erode civil liberties, it becomes easier to repeat the process and more difficult for people like me to shame him as the perpetrator. If the prosecution is unable to prove its case in a criminal trial, either because it does not have one or because it has been slipshod in marshalling the evidence, there is no better and more unjust way to enable it to secure a conviction than by allowing both a list of the defendant's previous convictions and an account of his bad character, which could deface the principles of fair trial in England and Wales. How the slaughter of innocents in those cases will refocus the criminal justice system in favour of victims is something that my enfeebled mind cannot comprehend. No doubt, the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Leeds, Central (Hilary Benn), will explain it in his winding-up speech.

I believe that civilisation depends on the holy trinity of justice, freedom and liberty. People who, like the Home Secretary, seek to separate justice from freedom and liberty soon find themselves, albeit inadvertently, going down the road of barbarism. I do not know of any Labour Back Bencher who wants to go down that road yet, in a bizarre refutation of conscience and belief, we shall tonight shut out the warning of the director of Liberty, who only accentuated the obvious when he said:

Only a few days ago, on 24 November 2002, John Rawls—one of the foremost political philosophers of our era—died. His message to the Home Secretary would have been that the loss of freedom for some can never be made right by a greater good shared by others. In affirming the priority of the right over the good, he would tell the Home Secretary that major aspects of the Bill are morally, politically and philosophically flawed, as they are based on the priority of utilitarianism over individual rights. I would simply warn the Home Secretary that if he is unwilling to maintain justice, justice may well be unwilling to maintain him.

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6.44 pm

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