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5.30 pm

We spend a lot of time trying to ensure that people are not put into a position in which they might be misunderstood. Our own rules of conduct in the House are based on the principle that we should make public anything that, in the eyes of a reasonable person, might be thought to prejudice us. In the eyes of reasonable people, the proposal will be thought to prejudice the police about certain people in certain circumstances.

Very often, the sort of people with whom the police deal are not very nice. Very often, it would not do any harm to lock those people up because they have probably done a number of things that they should not have done, but the police have not caught them for doing it, so it is not a terribly far step to say, "Well, in this case, we may not be quite right, but we didn't get him for so and so, and we're pretty sure that he could've been involved in the other, so why don't we?" That becomes even more damaging in a police force

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consistently afflicted by the Government's addiction to targets. We are now a society in which what matters is not what is right, good or effective, but what fits the Government's targets, and I am worried that this is another mechanism by which those targets can be met far too easily and with great damage to juries, magistrates, defendants and the police.

Although I have tried to speak moderately, this is not a moderate issue. In this clause, as in so much of the Bill, the Government are behaving in a dishonourable way—they are undermining some of the very basic principles of English law. Enthusiastic European though I am, I must say that our system ought to be learned from by others, not undermined by ourselves.

Vera Baird: I profoundly disagree with the right hon. Member for Suffolk, Coastal (Mr. Gummer), who has just spoken in what I regard as highly immoderate terms about a Bill that, in fact, many of my constituents, to whom I have gone to a great deal of trouble to explain its provisions, regard as likely to give them a better shout in the courts, to restore their confidence in the way that the criminal justice system works and to redress an imbalance that, sadly, has been allowed to creep into the criminal justice system. In general, this is a good Bill.

I suspect that that the right hon. Gentleman is perhaps suffering from a combination of his desire to be amusing and the fact that he is still gripped by the emotional impact of having unsuccessfully advocated for a person on death row—an emotional impact that I well understand, having done exactly the same job. I fear that he has led himself astray. The attack on the Bill was far too wide, as was the attack on clause 85. In truth, there is a relatively narrow problem with that clause, not a very wide one at all.

I accept the analysis of the current state of the law, proposed by my hon. Friend the Member for Stafford (Mr. Kidney). I agree with his analysis of the need for change, and I also accept the research evidence that he set out about the fact that juries are prejudiced by the admission of previous convictions.I shall not say any of that again.

In a sense, none of us has to persuade others that the introduction of previous convictions is capable of being prejudicial. The Government accept that it is. Paragraph 4. 55 of "Justice For All"—the paragraph before the one to which my hon. Friend the Member for Stafford referred—states:—

"Previous convictions, or some of them, may be irrelevant to issues in the case. Research undertaken for the Law Commission shows"—

I shall say this in capital letters, as it were—

"that knowledge of previous convictions may prejudice a jury or magistrates unfairly against the defendant."

The Government accept it. They put it in their White Paper, which sets out the basis upon which they intend to legislate. Have the Government gone back on that? I think not. They have carried the intention through, or 90 per cent. of it, but they do in the end slip up. I shall say in more detail what I mean.

Clause 85 allows in bad character of a defendant on eight bases. Subsection (1)(a) provides that it is admissible if all parties agree that it should go in—that

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cannot be a problem. Paragraph (b) refers to the evidence being brought in by the defendant—that cannot be a problem. Paragraph (h) refers to the evidence coming in because the defendant has made an attack on another person's character and it is just about equality of arms—again, that cannot reasonably be a problem.

Paragraph (f) provides that the evidence is admissible if

"it has substantial probative value"

in an issue

"between the defendant and a co-defendant".

That is governed by another clause, which provides that the evidence goes in only if there is a fight between the defendant and another person, which is fair enough and should not be further governed. Of course, every defendant has to have the right to put in everything that helps his defence.

That leaves us with paragraphs (c), (d), (e) and (g). I hope that it is clear that I am speaking in favour of amendment No. 133, which stands in the names of myself, my hon. Friend the Member for Sunderland, South (Mr.Mullin) and others, which is directed to expunging paragraph (d) from the clause.

I shall deal with the paragraphs that I do not seek to expunge, to ask in the end what paragraph (d) adds, except the real danger of the prejudice that the Government have envisaged in the White Paper. Paragraph (g) allows evidence of previous convictions to go in to "correct a false impression". It is entirely right that false impressions should not be allowed to prevail in a trial, the purpose of which is to search for justice. However, allowing in previous convictions so to correct has an extra condition upon it, and a very fair one. Clause 90 provides that if a false impression has somehow been conveyed and the defendant manages, however he chooses, to dissociate or distance himself from it, previous convictions will not be put in to correct the false impression. That is not problematic in any way.

Paragraph (c) provides that it is admissible to put in previous convictions if they are "important explanatory evidence". Again, that is governed by a further clause which sets out what that "important explanatory evidence" must additionally be. According to clause 86, it must be "important explanatory evidence" without which

"the court . . . would find it impossible or difficult properly to understand other evidence in the case".

If it is impossible for a jury to understand other evidence in the case unless previous convictions go in, they must go in. The entire point of the trial is to get the jury to understand all the evidence in the case. Equally, if it is difficult for the jury to understand other evidence in the case without previous convictions, there is an argument again for allowing them to go in. We are not in the business of putting difficulties in the way of jurors coming to a proper conclusion; we are there to help them.

Whether it is difficult without previous convictions going in properly to understand the evidence is a matter of opinion. It would be far better if the clause were governed by the general discretion in subsection (3) to allow the judge to decide whether it would be adverse to the fairness of the trial to allow previous convictions to

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go in, merely to solve a difficulty. Because of the perceived difficulties, previous convictions may have to go in automatically, whereas if the judge had discretion to look at the matter in the round, he might persuade the parties to consider another way of solving the difficulty. Consequently, subsection (3), which deals with the judge's discretion, ought to cover the issue of including previous convictions to solve a difficulty. There should be another hurdle to be crossed before those convictions go tumbling in, causing the prejudice that the Government accept they are capable of causing.

Mr. Heath: The hon. and learned Lady has prefaced each of her remarks with a qualification about previous convictions. Does she believe that all her arguments hold true for the so-called propensity to behave in a way that is disapproved of?

Vera Baird: I am conscious that I am using the term "previous convictions"— that is the argot used in court. However, I accept the definition of bad character as set out in clause 82—my arguments apply to that concept just as well as they do to previous convictions, and I would not want to mislead anyone into thinking otherwise.

Clause 85(1)(e) states that previous convictions and bad character will be admissible if they are

"relevant to an important matter in issue between the defendant and the prosecution".

That is a question of judgment, and the judge will have the ability to exercise judgment under subsection (3). As fairness and balance will characterise that judgment, and if the previous convictions are relevant to an important matter in issue between the prosecution and the defence, it is hard to see what mischief can follow. Clause 88 defines what is meant by the

"matter in issue between the defendant and the prosecution"

which, it says, may include

"the question whether the defendant has a propensity to commit offences"

of a certain kind. It therefore countenances the inclusion of previous convictions to show propensity, but then makes a reservation, stating that the exception is

"where his having such a propensity makes it no more likely that he is guilty of the offence."

The provision certainly countenances the possibility that propensity is sometimes relevant but, at other times, the existence of a propensity, provable by previous convictions, is not relevant to whether the defendant committed the offence or not.

That is relevant to the question of what on earth clause 85(1)(d) is about. I have gone through all the other circumstances in which previous convictions and bad character can generally be admitted, but paragraph (d) states that bad character can be admitted if

"it is 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".

That appears to be about propensity, but paragraph (e) deals specifically with the showing of propensity, with the caveat that that can be done only where relevant. Evidence of bad character will not just tumble in if it is not relevant.

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What is paragraph (d) for? In Committee, the Minister gave an example of his own experience of jury service. He had sat on the jury in a trial for burglary and handling the proceeds of the burglary. The issue was whether the defendant had come honestly into the possession of the proceeds of the burglary or not. At the end of the trial, the jury found out that that man had previous convictions for three burglaries, and the Minister said that all the members of the jury would have liked to know that in their deliberations during the trial.

In other words, the defendant had a propensity to be dishonest, and the Minister would regard that as important evidence that would help him to be persuaded one way or another. He said that that is why we need paragraph (d). But we do not need (d) for that, because (e) states that an important matter in issue between the defendant and the prosecution can be the issue of propensity, but only where propensity shows that it is more likely that the defendant has committed the offence.

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