| Previous Section | Index | Home Page |
2 Apr 2003 : Column 994—continued
Mr. David Kidney (Stafford): I have amendments in this group, starting with amendment No. 33, which are not quite so drastic as the Liberal Democrats' proposal to delete the whole of clause 85 and not quite so mild as the Government's position. I am steering a middle way, which should attract the Minister to my proposal.
The Government are sometimes unfairly portrayed outside the House as introducing measures that will allow juries access to people's bad character in circumstances where that is not at present admissible. That portrayal is not quite correct. Evidence of bad character has been admissible for more than 100 years. It is important that we understand that the law has developed in that way. At the moment, there are three circumstances in which such evidence may be heard: first, if the facts of a previous incident are so strikingly
similar to the facts of the case before the court that there must be something more to it than coincidence; secondly, if the defendant asserts good character whereas, in fact, the defendant does not have good character; and, thirdly, if the defendant attacks the character of another witness—usually a prosecution witness—and therefore becomes open to having his or her own character attacked through bad character evidence as well.Those are the circumstances in which evidence can be heard; I now want to talk about what evidence can be heard. Bad character evidence covers more than previous convictions—that is an important point, because some people do not appreciate it. Acquittals were held to be admissible in a case called Z; and evidence which the judiciary now calls "background information" was held to be admissible—whether that involves a previous conviction, an acquittal, or neither of those, but something else that suggests that it is relevant—in cases called Stevens and Dolan.
What is wrong with the Liberal Democrat amendment to delete the clause and leave the law as it is? To answer that, I turn to report 273 of the Law Commission, which did a good job on our behalf of analysing the present state of the law. It found, first, that the law is in lots of different places and is difficult to find; secondly, that the law is in rather obscure language and is difficult to interpret; thirdly, that judges have inconsistently applied the provisions in the past; fourthly, that, as a result of a combination of factors, evidence is not being admitted in lots of cases where it really should be, to help the court to make its final decision; and, finally, that, because the situation is not satisfactory, judges are developing their own law. I have just referred to some case law that shows areas where judges have started to allow evidence to be admitted in ways that are not covered in any previous Acts of Parliament.
The Law Commission did a pretty good job of convincing us of the need for reform. Codification was mentioned earlier. The Law Commission drafted a Bill that brought all the provisions into one place, and I commend the draft Bill to those who have not seen it. I think that it is excellent. If I could adopt it wholesale, in place of the Government's provision, I would. My amendments are inadequate to replace the Law Commission's excellent draft Bill.
The structure of the Law Commission's draft Bill is based on the premise that there are some circumstances where evidence of bad character should always be admissible. It describes one as being where it concerns the central facts of the case before the court and goes on to describe the two about asserting good character and challenging other people's characters effectively. The Law Commission felt that it should be stated that those are admissible in every case, but that in every other situation the leave of the judge should be the gateway to allowing such evidence to be admitted in any trial as evidence against the defendant. That is the point of my amendments and the opinion that I hold.
The Law Commission's view was that leave of the court should be sought in every case except for those few that I mentioned. I had thought that that was the position taken by the Government following their comments in the White Paper, "Justice for All", paragraph 4.56 of which states:
- "We favour an approach that entrusts relevant information to those determining the case as far as possible. It should be for the judge to decide whether previous convictions are sufficiently relevant to the case, bearing in mind the prejudicial effect."
What are the dangers of more routinely admitting evidence without leave of the court? The hon. Member for Southwark, North and Bermondsey (Simon Hughes) drew them out clearly. For a jury, there is the danger of false logic—that because the person has previous convictions, he or she must have committed the offence that is before the court. There is also the danger of prejudice—that because the person has been convicted of something dreadful in the past, he or she must have committed the offence that is before the court. I am talking about juries, but magistrates try many cases and would thus hear evidence of previous convictions.
The hon. Member for Southwark, North and Bermondsey mentioned the research that has been carried out. It is referred to as the Oxford research, because it was carried out at Oxford university, not at Birmingham university. The research tested whether mock juries who were presented with situations involving disclosure of previous convictions were prejudiced: the answer was overwhelmingly yes. The annexe to the Law Commission's report contains an update of the Oxford study, whereby 222 magistrates were put in the same position as those jury members to find out whether they were prejudiced by previous convictions: the answer was yes, to about the same extent as the jury members.
The only difference between the two studies was that, in the question about prejudice resulting from previous convictions, jury members were very prejudiced if they learned that someone had a previous conviction for indecent assault on a child, so whatever the offence before them, the person was considered guilty if they had such a conviction. Magistrates took a different view—a section 18 assault made them very prejudiced against the accused whatever the charge before them. With that one difference, it is a danger for all defendants.
The hon. Member for Southwark, North and Bermondsey dealt with the other two dangers of more routinely admitting such evidence, the first of which concerns sloppy preparation of cases for trial that relies on prejudice being enough to get the case through. The danger there is that if, for whatever reason, prejudice does not operate, a person is acquitted who should not have been because the case was not properly prepared. The fourth danger is that of the police rounding up the usual suspects—a lazy option that should not happen.
My amendments are an attempt to restore the Law Commission's draft Bill in the sense that, of the list of types of admissible evidence in clause 85(1)(a) to (h), two roughly equate to some of the Law Commission's recommendations on where leave should not be needed—(a) and (f)—and I would put those separately as being admissible evidence in every case. For all the others, I would say that for the evidence to be admissible, leave of the court is required and evidence must be relevant to the trial before the court.
The Minister and I have behaved in a gentlemanly way by exchanging correspondence about my amendments. Sadly, he could not bring himself to accept
them. That is a shame, but it is his decision. His view, to summarise his letter, is that the Government want to send out a message that bad character evidence will be admitted in most cases, but there are safeguards in the Bill for those cases where it should not be admitted.The safeguards are not very thorough, however. For example, only under paragraphs (d), (e) and (h) is there any protection at all. It is that the defendant is supposed to spot that the evidence is to be used against him or her in the trial and to object before it is revealed. The judge then has to consider whether the evidence would have
- "such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
5.15 pm
My proposals seem to have attracted quite a lot of support ahead of today. Perhaps the Minister does not receive all the briefings that are sent to the rest of us, but in several of them, including those from the Bar Council, the Law Society, the Legal Action Group, Liberty and the Justices' Clerks Society, there is either specific reference to my amendment and support for it, or the position taken seems to equate to my amendment in that those bodies want there to be leave of the court before such evidence is admitted.
The submission of the Justices' Clerks Society was prepared in February before I tabled my amendments, so the society was not saying that it agreed with me. However, I appreciate and agree with its summary, which states:
- "It is a question of finding the right balance, and, on balance, the Society has profound reservations about routinely admitting evidence of bad character which, albeit that some relatively complex qualifications and criteria are contained within them, the provisions are designed to accommodate. If the law is to be amended, the Society would prefer any changes to be more closely aligned to the Law Commission's recommendations."
I pray in aid the Law Commission. In terms of independence and authority, there is no better body. It has considered the matter in great detail and appeared to have everybody's approval when it published its report and its draft Bill. It is a pity that we have moved away from that draft Bill and I should like it to be restored.
| Next Section
| Index | Home Page |