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2 Apr 2003 : Column 1007—continued
Mr. Llwyd: Far be it from me to argue with the hon. and learned Gentleman, who is far more experienced in criminal trials than I am. I understand what he says, but that was not apparent to Lord Falconer when he defended the Bill.
Mr. Marshall-Andrews: I agree.
Mr. Llwyd: I am obliged to the hon. and learned Gentleman.
My main problem with the Bill is the routine introduction of evidence of bad character. That is a defect. It will, unfortunately, instil prejudice in the minds of jury and/or magistrates. That has been referred to in what I erroneously described as the Birmingham study, which I think is in fact the Oxford study, and was also referred to at length by the hon. Member for Stafford and the hon. and learned Member for Redcar. We are discussing a change in the law that will enshrine a right to introduce prejudice to a fair trial, which is asking for trouble. We are treading a dangerous path.
Yesterday, when we considered the Crime (International Co-operation) Bill, there was disparaging talk about the standard of justice meted out in other European jurisdictions. If we do not accept the amendment, we will find ourselves at the bottom of the league, and people on mainland Europe will ask when we will start to act toward accused people in a fair and reasonable manner. I honestly and sincerely believe that the provisions are highly objectionable.
Clause 88 includes a measure on propensity, but the Law Commission made no such recommendation on that score. I know that some of its recommendations have been used and some have been declined. The upshot of passing clause 86 and the other provisions without amendment will be to bring the criminal courts into disrepute. The provisions will make thoroughly bad law and I urge hon. Members to support the amendments.
6 pm
Mr. Mullin: It is a pleasure to follow the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). I agree with my hon. and learned Friend the Member for Redcar
(Vera Baird) that the Bill is better than the right hon. Member for Suffolk, Coastal (Mr. Gummer) acknowledged during his otherwise compelling speech. I agree that the problem is fairly narrow but it gives a damaging impression and stains the whole Bill, so I hope that the Government will do something about it. I shall speak to amendments Nos. 125 and 126, which I tabled. I support amendment No. 133, which was tabled by my hon. and learned Friend the Member for Redcar.Amendment No. 125 would provide that a person could not be convicted solely on the basis of bad character. It is an attempt to ensure that other evidence, such as an eye-witness account or fingerprints, links the defendant to the offence with which he was charged. That is not too much to ask in this day and age. When Lord Falconer attended a sitting of the Home Affairs Committee to discuss the Bill, he was at pains to assure us that the judicial discretion provided by clause 85(3) would be sufficient to prevent the use of bad character evidence to prop up a weak case. No doubt that will usually be true, but not necessarily always. I can foresee what might happen in a high-profile case because that would give rise to the greatest temptation. A judge might feel obliged to allow bad character evidence to go to the jury for fear of otherwise allowing the case to collapse. That is because the police would be under the greatest pressure to get results and the Crown Prosecution Service might be willing to throw such evidence to the jury, although it was a bit iffy, to find out what would happen. The amendment would prevent that from happening.
I am grateful to Lord Falconer and my hon. Friend the Under-Secretary for their courtesy and the trouble that they have taken to explain the Government's position. However, I cannot say that I am happy with the outcome. I have tried to be constructive and I provided Ministers with half a dozen proposals for modifying the provisions in addition to those in the Select Committee report. I regret that they have rejected every proposal.
I received a letter yesterday on amendment No. 125 that suggested that the Government envisage circumstances—albeit very limited ones—in which a conviction could be obtained on the sole basis of previous convictions. That is a recipe for mistakes and it is easy to imagine how they might happen. Whenever a serious offence such as a child murder is committed, the police reasonably search out people with previous convictions that make them potential suspects. People with alibis would be quickly eliminated but those without them would have a problem, especially if little or no other evidence were required. Experience implies that juries are especially suggestible in cases that involve sex offenders and that admission of previous sex offences against children would be fatal, whether the defendant was guilty or not.
On 7 March, The Guardian reported a story about a police search for the murderer of a young woman who was killed in Hampton in south-west London recently. It contained a sentence that gives us a glimpse of the possibilities:
- "Detectives are also scrutinising 60 people whom they regard as being 'of interest', and a dozen whose backgrounds make them credible suspects."
Mr. Oliver Letwin (West Dorset): The implication of the hon. Gentleman's comments of a moment ago is coming over me in waves. Did he receive a letter from the Government that stated that they expected that there would be cases in which a person was convicted solely on the basis of previous bad character?
Mr. Mullin: I must be careful not to misrepresent the Government. The case that they cited was Straffen in 1952. I cannot find the letter at the moment, but it seemed to me that the evidence in that case bore a signature and that the Government had not given an example that was relevant to my point. Perhaps I have misunderstood and the Under-Secretary can clarify the matter, but it appeared to me that they wanted to leave open the possibility, albeit remote, of convicting someone on the basis of bad character.
Mr. Marshall-Andrews: Perhaps I may assist. When evidence of bad character is adduced in criminal cases, it is clearly good law that the judge tells the jury that it must not convict on the evidence of bad character alone. That is currently the law. Although the Bill is flawed, I do not believe that it will have any effect on that part of the common law.
Mr. Mullin: I have now found the letter. The Government say that we should leave matters to the judge, who does not want to be hamstrung by the sort of amendment that I tabled. However, the track record of judges is variable—I put that as generously as I can. Most, but not all, can be relied upon. I remember the words of Lord Justice Bridge at the beginning of the summing up in the Birmingham pub bombings case. He said that some of his colleagues took the view that a judge should be an Olympian detached observer and impartially set out the case without revealing a view. He said that he was not one of those and went on to spell out his view of the case for 189 pages, destroying defence witnesses at random, with results that we all know. There are good and bad judges, and I am sure that most are good.
I do not want bad character evidence to be used to prop up a weak case. We can all think of examples: dodgy identification evidence or a cell confession. There are cases in which someone who has been interrogated for several days in custody and has not coughed is put in a cell with a known villain and, blow me down, is pouring out his heart in a few hours to a person who suddenly agrees to give evidence, in return for early parole or other offences being overlooked. My ears always prick up when I hear about a cell confession. I am sorry that they happen more often than they should. Add a bit of bad character evidence to dodgy ID evidence and a cell confession and, Bob's your uncle, there is a conviction. That worries me.
Amendment No. 126 is designed to extend the judicial discretion in clause 85(3). As drafted, the clause provides eight grounds for the admission of bad
character evidence, and a defendant can challenge them in only three circumstances, which the amendment would extend. The Government's proposals are a bridge too far and I hope that, even at this late hour, they will think again.The Liberal Democrat amendment No. 29 goes further than I would like, but I shall support it to send the Government a message that they need to examine their proposals again. If my hon. and learned Friend the Member for Redcar decides to press her amendment, which also bears my name, I shall support that, too.
Mr. Letwin : The debate has had the unusual characteristic of changing my mind in an important respect. I had not previously accepted the force of the argument advanced by the hon. and learned Member for Redcar (Vera Baird) about clause 85(1)(d). She made a compelling argument and I shall invite my hon. Friends to join her in the Lobby if she presses her amendment. Our amendments Nos. 23 and 24 do not deal with the serious problem of paragraph (d) and I profoundly hope that when the Bill reaches the other place, the hon. and learned Lady's arguments will be read by and resonate with the noble Lords. I certainly hope to see paragraph (d) expunged from the Bill.
I do not agree with the hon. and learned Lady's observations about the general tenor of the remarks made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), because I thought he was on to something. I disagree with the hon. and learned Lady partly because she has not taken into account the full force of the effect of the Government's other proposals. I shall explain why in more detail: to some degree, it has emerged from previous discussions.
In all these matters, the key issue is not the words on the page, but their effects in court. It is arguable—hon. Members have argued—that, broadly speaking, the law already achieves what the Government seek to achieve. If that were utterly the case, the proper step would be for us to accept and support the Liberal Democrat amendment. If the law already admits propensity, already restricts it appropriately and already admits appropriate factors—similar fact and so forth—there would no point in introducing the clause in the first place.
The current Home Secretary is the most legislative Home Secretary in British political history. He would take great pride in that; I am not accusing him of anything that he would be cross about. It is not a track record that I would seek to emulate if I ever succeeded to his post. However, even this Home Secretary with his great legislative propensity has no previous convictions for producing legislation that will have no effect. I doubt that he has marshalled the awesome resources of the Home Office to establish a set of intricately interlinked clauses—clauses 82, 85 and 88—with the sole purpose of having no effect whatever on British legal practice. He surely intends the provisions to have an effect. Presumably, the many highly paid and highly expert lawyers at his disposal will have advised him that the clauses will have an effect. It is unlikely that the only effect that he intends or expects will come about through paragraph (d)—though, as I say, I am persuaded that that provision will have an untoward effect. The Home
Secretary intends a wider effect, so it is important to recognise that and wrestle with its implications. That is precisely what our amendments are designed to achieve.
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