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2 Apr 2003 : Column 1004—continued
5.45 pm
That may be a tortuous argument, but I hope it is now clear that in so far as propensity is relied on as a justification for paragraph (d), it is totally and utterly unnecessary. What it allows, frighteningly, is for previous convictions to be admissible which will show propensity when they do not make it more likely that the defendant has committed the offence with which he is currently charged. If they did that, they would go in under paragraph (e). Consequently, paragraph (d) has no justification whatever, and it would prejudice the jury. That is where the matter starts and finishes, once one analyses with some care and in some detail the basis on which in other paragraphs previous convictions are admissible.
Simon Hughes: I have followed the hon. and learned Lady's argument, and she knows that I am with her on the problems of paragraph (d). Can she explain how she can justify the argument that if there is a propensity to carry out a certain offence, that makes it more likely that the individual has committed the offence with which he is charged on the present occasion? That was the question put by the right hon. Member for Suffolk, Coastal (Mr. Gummer). Propensity does not lead one to that conclusion. Why does the hon. and learned Lady believe that it does?
Vera Baird: I did not say that. On the contrary, that is the issue, under paragraph (e), for the judge to decide. He has to say that previous convictions can be mentioned to show propensity if that propensity makes it more likely that the defendant has committed the offence in question. There is clearly a grey area. Occasionally, if a series of similar offences has occurred recently, propensity might be probative. The judge must decide under paragraph (e) whether the evidence of propensity—about which, as a general proposition, I confess I am a little unhappy—makes it more likely that the defendant has committed the current offence.
That question can fairly be asked, but under paragraph (d) no such question is asked. Previous convictions tumble in simply because they exist,
although they do not make it more likely that the defendant has committed the offence with which he is charged. If they did, they would go in under paragraph (e). Reference to previous convictions will prejudice juries to no effect, and that is a prejudice that the Government accepted in the section of the White Paper from which I quoted. It is a prejudice against which they set their face in that same White Paper.What will the consequences be? They have been mentioned by others. Our stated policies are to catch more criminals, to convict more criminals, to punish more criminals and to rehabilitate more criminals. How will people be rehabilitated when they know that if any offence is committed in their locality that resembles the one of which they were convicted in the past, they will be picked up. They are bound to be picked up for it by a police service that knows that that will help it to get a conviction. They are bound also, more frequently than prior to the Bill, to be prosecuted by a Crown Prosecution Service that knows that in deciding whether a prosecution is likely to succeed, it can weigh in the balance the fact that previous convictions will be put before the jury.
The criminal, who was intended to be rehabilitated, will also know that he is far more likely to be convicted because of his previous conviction. The Government say that they want to rehabilitate such people. The Government say they want them to go straight, to turn over a new leaf. But those people will be trapped in their past. They will be unable to get away from their past. For what? For no reason at all. Every conceivable justification for admitting bad character into a trial has been set out in all the other paragraphs of clause 85(1). Paragraph (d) is extremely dangerous, and I urge all hon. Members to vote it out of the clause.
Mr. Llwyd: The Bill is part of a panoply of measures meant to address the perception that the legal process is skewed in favour of defendants and therefore against the prosecution. This measure is part of what I believe to be a series of measures to redress the balance in favour of the victim, but I regret that the likely upshot of this part of the Bill will be to create victims, who may well be queueing up in the criminal Court of Appeal in due course. I listened carefully to the speeches by the right hon. Member for Suffolk, Coastal (Mr. Gummer) and the hon. and learned Member for Redcar (Vera Baird), and I fully agree with what they said. I will confine my remarks to certain points that they did not cover.
If the current proposals pass through the House unamended, allowing evidence of previous bad character and/or convictions will be hugely detrimental to the trial process in our criminal courts. Let us remember that there are circumstances—albeit limited ones—in which we already have the right to introduce evidence of bad character and previous convictions, and that is absolutely right. Any practitioner will agree, however, that those circumstances are usually exceptional because, by definition, they are relevant only in exceptional cases. But the Bill proposes a wholesale, blanket introduction of previous bad character. Would that not mean that every defendant, once convicted, was beyond redemption?
I refer to what the hon. and learned Member for Redcar said about rehabilitation. This measure would effectively mean a life sentence for some people. Perhaps that is dramatic language, but it would not be pleasant for a person to be picked up just because someone in the locality had offended in a way similar to that in which he had. For years to come, such people might await the knock on the door. That would be hugely damaging to the whole image of the judicial process, from the police investigation upwards.
Worse still, the proposals pander to the "round up the usual suspects" culture that is, I am afraid, prevalent in some parts of the justice system. Some of us feel that this one measure will throw the criminal justice system into disrepute. The next stage will be to dismantle the system of trial by jury. The job will then be complete. If these provisions are enacted unamended, I believe that it would be simpler to dismantle the jury system in due course, and that such a move might meet with less opposition then.
Let us remind ourselves briefly of the circumstances in which character can be admissible. First, if a defendant asserts that he or she is of good character when he or she is not, it is perfectly right to introduce that evidence in a criminal trial. Secondly, if a defendant attacks the character of a witness, it would be perfectly right for that to be admitted. The hon. Member for Stafford (Mr. Kidney)—echoed by the right hon. Member for Suffolk, Coastal—mentioned evidence involving striking similarities that would make it almost unbelievable that another person had committed an offence in exactly the same way as the person before the court. Introducing such evidence in those circumstances is perfectly acceptable. I have been involved in trials in which such evidence has been presented, and, of course, the judge will decide in those circumstances whether it is right or proper to do so, and whether to do so would create any prejudice to the trial or to the defendant.
Clause 85 should be removed altogether. The law already provides for the rare circumstances in which character and/or previous convictions need be introduced, and, like the hon. and learned Member for Redcar, I see no reason to include the clause other than to introduce prejudice.
On 3 March, The Guardian cited the views of Lord Falconer and observed:
- "In one recent case, a jury trying a doctor accused of raping a patient was not allowed to know that he had previously been convicted of indecently assaulting six patients and acquitted of raping another. The defendant was addressed as 'doctor' even though he had been struck off, and the jurors were unaware that he was being brought to court each day from prison. That typifies the sort of case, argues Falconer, where juries should not be kept in the dark."
- "I'd have thought the classic case is an apparently respectable professional man, say a doctor, who assaults patients in the course of his work."
It seems to me that precisely such cases are already covered by similar fact evidence. If such a person repeatedly assaults or rapes his victims in his surgery, it is only right and proper for any half-decent, half-sensible prosecutor to apply to the judge, and I am almost sure that few judges would see any reason to
dispute such an application. The best case presented by Lord Falconer in defence of these draconian provisions is the one example covered by current law and practice.
Mr. Marshall-Andrews: I agree with much of what the hon. Gentleman has said, and I agree, in general terms, that in the example given by Lord Falconer the evidence would have been admitted. However, I take issue with the hon. Gentleman on the use of the term "similar fact evidence"; indeed, I have objections to its use in a general context.
As the hon. Gentleman will know, the terms "similar fact evidence" and "striking similarity" have recently been disapproved of by the courts. The test now applied is that of relevance to an issue of propensity. In the example given, the evidence would plainly be relevant to an issue of propensity and would therefore be admitted. The issue that I have with the hon. Gentleman—and, I am sorry to say, with the right hon. Member for Suffolk, Coastal (Mr. Gummer)—is this: the test proposed in the Bill is identical to the one currently applied.
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