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2 Apr 2003 : Column 966—continued
Simon Hughes: I shall speak not only to our amendments, but to amendment No. 121, which was tabled by the right hon. Member for West Dorset (Mr. Letwin) and other Conservative Members. It might be helpful if I tell hon. Members that we believe the matter to be of importance and that, unless the Government are minded to make a significant movement in our direction, we shall press amendment No. 146 to a Division and encourage hon. Members to support us. If the hon. Member for Beaconsfield (Mr. Grieve) is minded to press amendment No. 121 to a Division, we shall support him and his colleagues.
This group of amendments is the first on the subject of fair trials. There is a lot of discussion in the press about fair trials abroad, but the amendments relate to fair trials at home—they relate to hearsay evidence. Later, we shall have an even more important, but equally central, debate about whether evidence of bad character may be brought into play and adduced during a trial. We believe that a common thread runs between this debate and that debate.
There are differences between the Liberal Democrat view, the Government's current view—it was not their position when they were in opposition—and the
Conservative party's general view. In the past, justice was seen to be done in criminal trials because the prosecution had to make its case by bringing evidence and, unless that evidence was accepted, allowing that evidence to be tested by defence cross-examination. Trials were supposed to be held on the basis of evidence relating only to the charges before the court, not to the defendant's pre-history. The debates on hearsay evidence and evidence of bad character show that the Government's position has moved and—I am generalising a little—their current position is, "The more that can be put before a court, the better." They believe that it should be presumed that all evidence that might be relevant should be put before the court so that the judge or jury may reach a decision.That is a proper and normal rule in the civil courts, in which people's liberty and associated punishments are not an issue and decisions are made about which party is liable for a specific activity. The civil courts weigh up evidence in favour and against each argument and traditionally reach a view on the balance of evidence. The same has never been true of the criminal courts, where the prosecution must prove a case beyond reasonable doubt rather than using a test of the balance of evidence. Society has rightly decided that convicting people wrongly is such a severe interference with their rights and liberties that a high hurdle must be negotiated before they are convicted. That is why the courts have adopted from common law—not from statute—rules on evidence that may be admitted, and Parliament has developed them.
My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I said many times in Committee that the rules of evidence are sometimes too complex. They need to be tidied up to make them more straightforward. We put on record the fact that codifying, clarifying and simplifying the rules of evidence is a good thing. We support codifying the rules of evidence, including hearsay evidence, but we do not support changing the rules of evidence to reflect the Government's starting point in clause 99. Under the clause, second or third-hand hearsay evidence will ordinarily be admissible unless exceptions apply. Such evidence is distinct from that heard from somebody who tells what they have seen.
We believe that second or third-hand evidence should not normally be admissible unless there is a good reason for it to be admitted. Our belief is based on a simple proposition: if a person repeats what has been said or what somebody else said was said, the accuracy of the original statement cannot be checked. We all know how statements change as they pass down lines of communication. Convicting on the basis of the evidence of someone who is not in court and cannot therefore be seen and heard and whose character cannot be judged by the judge or the jury means asking the court to place reliability on the evidence that makes it potentially equal to that of people who are in court and can be seen and heard. There is thus a danger of weighting the case against the defendant in a way that would not happen if the people whose evidence is cited had to be present.
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We support the proposal that hearsay evidence should continue to be inadmissible unless specific conditions are fulfilled. We wish that the Government
had kept to the view that the Law Commission recommended to them—it undertook a considerable piece of work and reported in 1997. It produced a draft Bill and 50 recommendations, and continued to support the traditional view that hearsay evidence would not generally be admissible, with exceptions.I know the arguments for the opposite view because we have held discussions with the Under-Secretary and his colleagues, for which we are grateful. It is argued that if people believe in and trust the jury system, they must trust members of the jury to listen to everything and reach a fair judgment. That is superficially appealing, but there is a weakness in the argument. Nobody has ever claimed that the jury system is perfect. We have always argued that it is the best system, and that lay magistrates constitute the best system for the lower courts. The court is representative of the general public, and juries and lay magistrates can thus listen to the facts without bringing to the case the lethargy that can derive from sitting in court day in, day out. Lay magistrates and especially members of juries bring the experiences of their day-to-day lives to the court, listen to the case and judge on the facts. However, like everyone else, they have prejudices.
It is important not to include hearsay evidence because, although trial by jury is the best system, if jury members are given information that is less valuable, less able to be tested or irrelevant to the offence with which the person is charged, they may be improperly influenced and judge on the basis of bad evidence or evidence that they cannot test. That applies especially to evidence of bad character, which we shall consider later. We therefore trust the jury, but it should only be given evidence that it can properly examine.
We accept that the hearsay rules constitute some of the most complex and confusing parts of criminal law and that they need to be tidied up. We also accept that the Government want to ensure that, if possible, less time is spent on complex arguments about evidence on the conduct of cases. We support that proposal. If we can reduce the time it takes for cases to get to and through court by removing arcane and often prolonged evidence about minutiae, so much the better. I have said publicly to the Home Secretary that we have signed up to trying to codify that aspect of the law to make it simpler and to avoid the necessity for people to go from one part of criminal law to another. Reform is therefore acceptable to us. We are not being conservative or stick-in-the-mud, nor are we defending practices that do not work.
We are encouraged in our belief that our view is correct by the Select Committee on Home Affairs, which considered the matter and decided that it preferred the Law Commission's proposals to Lord Justice Auld's later proposals and recommendations. The Auld report was the immediate predecessor of the draft White Paper. We note that the Joint Committee on Human Rights is worried about whether, in some cases, a fair trial could be obtained and whether article 6 of the European convention on human rights would be breached. It is worried about trials in which convictions are based only on hearsay evidence. According to its report, no such case has gone all the way to the Strasbourg court. We are therefore slightly in the dark about the convention's effect.
All the organisations that have been consulted and represent regular practitioners have expressed anxiety about the proposals. They include the Legal Action Group, the Bar Council, Liberty, Justice—I declare that I am a member of its executive council—and the Criminal Bar Association. There is therefore significant concern; we are not simply making a party political point.
I want briefly to point out why the proposal is defective and to outline our suggestions for better legislation. The group of amendments is large and I do not therefore propose to go through it in detail. I appreciate that others wish to speak and that the debate is time limited.
Mr. Robert Marshall-Andrews (Medway): Before the hon. Gentleman moves on to that matter, he was talking about convictions that are wrongly obtained as a result of hearsay evidence. Does he understand—as I do—that the provisions relate equally to the defence and to the prosecution, so that both will be able to take advantage of them?
Simon Hughes: I believe that that is right, and it could be argued that the proposed changes will produce equity of arms. I accept the hon. and learned Gentleman's point. I understand why the Government are concerned to ensure more convictions of the guilty: we all say amen to that. The issue before us, which motivates the Liberal Democrats' approach, is whether the drive to obtain that result will fail or, if it succeeds, whether it will do so at the expense of more convictions of the innocent. Sadly, there are already more than enough wrongful convictions in the justice system of England and Wales—the Bill does not affect Scotland—and we should be careful not to do anything that would increase the number of wrongful convictions.
Amendment No. 146 would return clause 99 to what it should be. As drafted, it states:
- "In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated",
- "if, but only if . . . any provision . . . makes it admissible, . . . any rule of law preserved by section 103 makes it admissible, . . . all parties . . . agree to it being admissible",
- "In criminal proceedings a statement not made in oral evidence in the proceedings is not to be admitted as evidence of any matter stated"—
Clause 99 includes a judicial oversight provision, whereby the court has to be satisfied that
- "despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible."
Amendment No. 151 would add a qualification at the end of the long list of considerations—(a) to (i) in clause 99(2)—that the courts should take into account when deciding whether to include hearsay evidence—for example, how probative or important a statement is, or according to
- "the circumstances in which the statement was made"
- "how reliable the maker of the statement appears to be",
- "and the court shall in no event admit such a statement if it is of the opinion that, if the statement were admitted, any conviction of the defendant would as a result be based wholly or substantially on statements not made in oral evidence in the proceedings".
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