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2 Apr 2003 : Column 1011—continued
Mr. Marshall-Andrews: I know that the right hon. Gentleman considers, as I do, that this Government have a bad character when it comes to introducing legislation that assaults civil liberties. That happened twice in the previous Parliament, and corrections had to be made in the House of Lords. The previous Conservative Administration had a similarly bad character, for the same reasons. One way that that bad character is acquired is through the thoroughly meretricious practice of rephrasing existing law in ways that attempt to make it appear that it is being strengthened against criminals, when no such thing is happening in fact. I should be very interested to hear how the right hon. Gentleman considers that the present law differs from the proposals in clause 85. The earlier clauses, as described by the right hon. Member for Suffolk, Coastal (Mr. Gummer), are different.
Mr. Letwin : I shall answer that request, but first I should admit that there are instances—the Anti-social Behaviour Bill that will come to the House in the near future may be one such—where legislation is a form of public relations. That is regrettable, but it has occurred. However, I do not think that this Criminal Justice Bill is in that category. It is the centrepiece of the Home Office's suite of legislation in this Parliament, and I doubt that the Government want to achieve a purely public-relations effect with it.
I think that the Government are trying to do something with this Bill, and roughly what that is has become clear in this debate: they are trying to send to the judiciary a signal that its members should somewhat alter their presumption. No more, just that—but it is an enormously important action. None of us in this House can guess or know how far the judiciary will pay attention to that signal. Judges have proved splendidly able to disregard such signals from time to time, but they may pay attention to this one, and that is what concerns us. I do not want to dwell on the problem, which has been eloquently described by others. The Opposition's concern is exactly as has been described—that, if rounding up usual suspects were to become a regular phenomenon, it would alter the character and reputation of British justice as very little else could.
6.15 pm
The most important feature of our constitutional arrangements, and of people's sense of justice in this country, is that we operate from the presumption of innocence. I do not think that there is a more important principle in Britain. If, over a period of 10 or 20 years, the British public come to believe that being a usual suspect will often lead to being convicted, and that it is not as important to the courts as it used to be that there must be proof beyond reasonable doubt, that will undermine our system of justice in a way that nothing else could.
We have a very precious inheritance, and we must go the last mile to protect against the effect that I have set out. That is why it is important that we redress the balance by introducing into the clause a provision that will prevent the signal that I have described from being
conveyed to the judiciary. That is precisely the intent of our amendments Nos. 23 and 24. Their effect would be clear and simple: they would require the judge to look at the potential probative value of the evidence, and minutely to consider whether that is outweighed by the prejudicial effect of the bad character evidence.In amendment No. 24, we go in some detail into the steps that the judge needs to take to make that determination. We do so to ensure that no judge could possibly be tempted, after reading this legislation—we hope that it will become an Act—to conclude that he was being asked to take the risk of allowing evidence whose probative value was outweighed by its prejudicial effect.
The most important part of amendment No. 24 is contained in proposed new subsection (4A)(b). We ask judges to consider whether the risk of
- "convicting the defendant on the basis of his previous conduct rather than because they are satisfied of his guilt in relation to the matters now alleged"
The hon. and learned Member for Redcar (Vera Baird) used the phrase "somewhat unhappy about it" towards the end of her remarks. It emphasised the force of my argument with her about the parts of the clause outside paragraph (d). Everyone who has spoken in the debate has been somewhat unhappy about the prospect of previous character evidence being given too great a weight. That is an instinct and a feeling to which we ought to attend, as it springs from the deepest understandings of the nature of our system of justice. Parliament ought not to be allowing legislation to be enacted in a form that leaves people who want to convict the guilty but want to preserve the ability of the innocent to go free feeling somewhat unhappy.
Lady Hermon: It is unclear from the amendments whether the right hon. Gentleman and his colleagues agree with the definition of bad character evidence in clause 82, which concerns me greatly. The clause states:
- "Evidence of a person's bad character is . . . he has committed an offence, or . . . he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person."
Mr. Letwin: The hon. Lady makes a serious and salient point, but it should be tackled in the light of the free advice given to us by the hon. and learned Member
for Medway (Mr. Marshall-Andrews), acting in his capacity as the local lawyer. He told us, rightly from what I have been able to understand, that the statement in clause 82(1)(b)—I agree with my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) that it is bizarre—is not a bad codification of the way courts understand bad character at present. They allow propensity, as the hon. and learned Member for Redcar made clear and, amazingly—I had not understood this fact before dealing with the Bill—they admit, or have shown some inclination or propensity to admit, character evidence that is not evidence of a previous conviction but goes beyond that. It might even include an acquittal. I agree with the hon. Lady that, taken at face value, clause 82(1)(b) is jolly worrying. As the hon. and learned Member for Medway informed us, the present state of the law is somewhat worrying. However, to return to the point that I am trying to make about our amendments, as I understand it—I hope that I am right—the courts have an extraordinary inclination to look very closely at any such evidence before they allow it to be brought forward. They worry a lot about whether any such evidence should be brought forward. In particular, they worry about evidence that is not a previous conviction. The general attitude of the courts is therefore not to allow such evidence unless there are extremely strong arguments for doing so in the interests of justice.The problem with the signal that is sent by the clause as it stands—the signal that I believe the Government intend to send to the courts—is that it is intended to diminish the degree of angst that the courts rightly exhibit. If clause 82(1)(b) is a reasonable synopsis of the current definitions on which the courts operate in practice, what we have set out in amendments Nos. 23 and 24 becomes all the more important. If there has been a previous acquittal, and if the prosecution argues that it should be admitted in evidence, the judge should be able to ask whether there is a risk that, if such an acquittal is brought before the jury, the defendant will be convicted on the basis of previous or alleged conduct instead of on the facts of the case. If, through amendment No. 24, we could restore the position so that the courts do worry about such questions, we could reasonably leave it to judges to protect the presumption of innocence. My impression is that the English judiciary still has a strong attachment to the presumption of innocence.
Mr. Marshall-Andrews: I would like to correct one misapprehension. I do not say that clause 82(1)(b) represents succinctly the law as it stands. Indeed, I cannot think of a court of appeal that would have expressed itself in terms, or in prose, as awful as the wording of clause 82(1)(b). However, perversely, therein lies the safeguard. This clause will undoubtedly be interpreted and construed by the Court of Appeal, and
it will be interpreted and construed in precisely the same terms as the present law. That is not satisfactory, but it is not a burning-at-the-stake issue.
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