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2 Apr 2003 : Column 1014—continued
Mr. Gummer: Will my right hon. Friend give way?
Mr. Gummer: Like my right hon. Friend, I am not a lawyer. One of my big problems with this issue is that, although the hon. and learned Member for Medway (Mr. Marshall-Andrews) is always extremely seductive in presenting his views, I am not at all sure that hon. Members should agree to phrases that, simply because they are manifestly barmy and inadmissible, judges will interpret in a wholly satisfactory way. Does my right hon. Friend agree that it would be much better to get rid of clause 82(1)(b), so that those words do not deface what may otherwise be considered a reasonable part of the Bill?
Mr. Letwin: I am in danger of being persuaded twice in one afternoon. I agree with my right hon. Friend that, on the face of it, clause 82(1)(b) is jolly odd—that is my translation of his "manifestly barmy". If clause 82(1)(b) does not properly provide a synopsis of the way in which the courts currently deal with these matters, it will be necessary to change it—in the other place, because it is too late here and now—so that it does. It is clear to me from the remarks of the hon. and learned Member for Medway and others that the courts have a conception of something that goes beyond mere conviction, and that needs to be captured in clause 82(1)(b) if we are to have a decent piece of law. I take it that that is what the Government tried to achieve in the clause, but I am persuaded by my right hon. Friend that, if it does not do so, it must be amended so that it does and so that it makes sense.
6.30 pm
I want to say one last thing in this connection. To respond to the hon. Member for North Down (Lady Hermon), even if we reach the point where clause 82(1)(b) is a reasonable synopsis, it will operate properly, in the spirit of the kind of justice that we want, only if it is allied to a set of provisions that ensure that before the court admits such evidence it will look extraordinarily closely at the matter and ask itself very carefully whether there is a prejudicial effect. That would require amendments Nos. 23 and 24, or similar amendments.
Mr. Garnier: Notwithstanding clause 85(1)(e) and (f), which cover relevance to an important matter and substantive probative value, the House should be worried about clause 82(1)(b) because it relates to matters that may have nothing whatever to do with a criminal act. Although it is bad enough in many circumstances to admit previous convictions, to admit evidence in relation to behaviour that is not criminal, but may be immoral or disapproved of by reasonable people, is something that I invite my right hon. Friend to resist strongly. Whether he resists it through his
amendment or through amendments tabled by other hon. Members, I urge him not to allow himself to be seduced by any arguments that the Government advance, no matter how reasonably they are put.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. Before the right hon. Gentleman answers, I must say to the House that I am even less of a lawyer than any other right hon. or hon. Member who has participated, but I am bound to observe that we are dealing with clause 85 and must not spend too much time on clause 82.
Mr. Letwin: I am mindful of your point, Mr. Deputy Speaker, and I shall leave it at this: I have become utterly persuaded that clause 82(1)(b) requires pretty drastic attention in the other place.
I hope that the House will send to the other place—because that is where the argument will be carried on and where the votes will be won or lost in a meaningful fashion—a clear signal that is very different from that which the Government wish to send to the judiciary: namely, that one way or another we have to arrive back at a position in which the courts are very reluctant to admit evidence of this kind and do so only in circumstances where they are absolutely convinced, upon prolonged consideration, that the presumption of innocence will not be so prejudiced as to change the character of British justice. If we can arrive at such a position, the means by which we do it are far less important than the effect that we will have.
Mr. Heath: This has been an extraordinarily interesting debate in which we have heard valuable contributions from lawyers and non-lawyers.
There is a cliché in the film and television worlds of the police movie or the police serial in which one policeman is stolid in appearance, has a stolid car and a stolid house, and takes a stolid approach to policing matters that goes by the book. That person is not the hero. The hero is the rebel who refuses to wear the correct uniform, insists on living in completely inappropriate accommodation and continually bends the rules to breaking point and beyond in order to secure the conviction. We are supposed to assume that that policeman is the one who is doing his job in a better and more admirable way. That is not the case, however. That police officer is a danger both to himself and those around him and to the course of justice. Sometimes, when the Government address matters of crime, policing and justice, they take that somewhat reckless attitude. They take the view that the end of securing more convictions of guilty parties—an aim that we all share—allows them to take reckless risks with the means of arriving at that point, which are the judicial and, especially, the court processes. That is what we are debating.
In some ways, the proposals are a codification of current practice. Members on both sides of the House have been at pains to say that we accept such codification as right, proper and a sensible way forward. However, is the use of that vehicle to extend the introduction and admissibility of bad character evidence, as the Government propose, a sensible reaction to rebalance the scales of justice; or will it take things to the point at which it is likely that manifest injustice will be done? The latter is more likely.
I entirely accept your strictures about clause 82, Mr. Deputy Speaker, but we must be aware of what it says, because it provides for the bad character evidence that would be used under clause 85. I am wholly unpersuaded that subsection (1)(b) of clause 82 represents an acceptable definition of what might be admissible evidence of bad character. As that provision is unacceptable, it is even more difficult to accept clause 85 because it would provide for such bad character evidence to be admissible in a wide range of circumstances.
Earlier in the debate, the hon. Member for Witney (Mr. Cameron) asked why we wanted to delete the whole of clause 85 even though we accepted codification. The answer is that the clause would be extremely poor codification. Indeed, professionals in the field have said that it is more likely to result in more lawyers making more arguments about admissibility than in fewer lawyers making fewer such arguments. Although we believe that it is possible to reach consensus on appropriate codification, this clause is not it. We can pray in aid the comments not only of Labour Members but of Plaid Cymru and Conservative Members. They share our view that the provision is unacceptable.
There are several layers of unacceptability. First, we must start with the presumption of innocence and proceed on the basis that, in British law, the case before the court is the one that is being tried—not previous circumstances that may not be relevant to that case.
Secondly, it is wholly unacceptable to define a criminal class, whereby people who are identified as likely to have committed a crime, in the eyes not of the police but of the court, are more likely to be convicted of that crime irrespective of any other evidence that is submitted. I am reminded of the unlamented Lord Chief Justice Jeffreys and his infamous, and probably apocryphal, dictum during the bloody assizes in Taunton, when he tried some of my ancestors and others after the Monmouth rebellion: "Do not waste the time of the court by pleading your innocence." We say much about British justice, but at one time it was not quite as finely balanced as it is at present. When a person is before the court, we want no presumption or prejudice that merely their past record or character, rather than the other evidence adduced, suggests that they are more likely to have committed the crime.
Separate from the provision's effect on the defendant and the conduct of cases is its effect on the conduct of investigations—a point made by the hon. Member for Stafford (Mr. Kidney). Several hon. Members have alluded to the practice seen in "Casablanca" when the policeman René, whose rank escapes me, gives the order to round up the usual suspects. That process is not acceptable in British policing, but clearly the temptation to use it will be greater if the usual suspects are more likely to be convicted in a British court. The provision encourages sloppy policing and sloppy case preparation, as the hon. Gentleman said, and it makes it more likely that investigators will concentrate more on investigating previous convictions and history than the circumstances of the current case, which is bad practice in itself. All those problems combined make the provision corrosive of investigative and judicial procedure in a way that we in Parliament should not accept.
I believe that the Government could propose a formulation to which all of us agree. The lead amendment would delete clause 85 in its entirety simply because the Liberal Democrats think that the Government should go back to the drawing board and start again. The hon. and learned Member for Redcar (Vera Baird) takes a narrower view: she has no problems with much of the clause but wants to get rid of subsection (1)(d), which she finds especially offensive. We agree that that is the most offensive part of the clause, so we can support her amendment. The right hon. Member for West Dorset (Mr. Letwin) has been persuaded by some of the arguments about subsection (1)(d) but not of the desirability of deleting the whole clause; he would introduce a new test—a balance between the probative value of the evidence and the prejudicial effect. We agree with that as well: although it is perhaps the least satisfactory way to redress the imbalance in the clause as it stands, it is a move in the right direction and we are grateful to the right hon. Gentleman for suggesting it.
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