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2 Apr 2003 : Column 1017—continued
Mr. Kidney: The hon. Gentleman feels sure that the House could agree on a proposal to replace the Government's. Might that be found in the Law Commission's draft Bill?
Mr. Heath: I think that that proposal comes close, and it should certainly be the starting point because it is founded on research done, advice taken and the application of judicial minds to the problem and it builds on current practice. I am told that similar fact is now called propensity—I am not a lawyer, so I did not know that—but it appears to cover broadly the same area. I share the view expressed by the right hon. Member for Suffolk, Coastal (Mr. Gummer) that if we rely on the Court of Appeal to interpret what we in Parliament draft sloppily, we are not doing our job properly. I hope that we can get the provision right in the other place; it clearly is not right now.
Whatever the solution, let us all accept that there is a problem with the Government's drafting. They have attempted to be popular in some ways and to send out signals. I deeply mistrust the concept of sending out signals; that is not what legislation is about. Legislation is about making law that is unambiguous and will work, not about sending out signals that might be misinterpreted at the point of receipt. If a measure so crucial to the judicial process and the reputation of our courts is wrong now, let us go back to the drawing board and reach a consensus on an alternative proposal. I agree with the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who said that those who yesterday, debating the Crime (International Co-operation) Bill, decried other countries' judicial systems will have to look again at ours if we accept into our law the Bill in its present form, complete with the demerits, deficiencies and imbalances that it will introduce into our system.
6.45 pm
Mr. Cameron: This has been a fantastic debate to listen to, perhaps especially for the non-lawyers among us. I wanted to add my voice in opposition to what the Government are trying to do in clause 85 in terms of previous convictions.
As the hon. Member for Somerton and Frome (Mr. Heath) said, we have been offered a menu of ways of changing what the Government are suggesting. The Liberals propose that we leave out clause 85 all together; my right hon. Friend the Member for West Dorset (Mr. Letwin) suggests that we consider prejudicial and probative value in each case and try to codify the law; and the hon. and learned Member for Redcar (Vera Baird) proposes what is possibly the neatest solution—taking out clause 85(1)(d), as paragraph (d) is the biggest problem.
After all the arguments that the Government have heard, I am sure that they are aware that they must go away and rethink the provisions. They have a range of options, including those proposed by the hon. Member for Stafford (Mr. Kidney) and by the Law Society. I think that anything would be better than clause 85(1)(d), which is the real problem.
There is a charitable view of what the Government are trying to do and an uncharitable view. When I served in Committee, I felt that the charitable view was that they are trying to find a balance between two principles: first, the jury should be able to see the facts—
Mr. Letwin: Just for the record, will my hon. Friend confirm that he cannot have heard the Committee discuss the provision in question, as opposed to the many others, because the proceedings were so organised that it never reached clause 85?
Mr. Cameron: My right hon. Friend is absolutely right. There are many things that we did not reach. Indeed, we did not reach some things in Committee that we have not reached today and will not reach.
The charitable view of the Government is that they are often wrestling in the Bill with two principles. The first principle is to let the jury see the facts, let the dog see the rabbit and let all the facts be laid out in front of the jury and trust it. The second principle is that we must do what we can to keep a fair trial. The uncharitable view of what the Government are doing is that they wanted to have a public relations exercise—this is the point made by my right hon. Friend the Member for West Dorset—and a tough Bill. They wanted the police to say "Yes, this is a great, tough Bill" and the Prime Minister to be able to speak at the Dispatch Box about a tough law-and-order Bill. There were moments in Committee when one felt that the police had given the Government a list of things that they would like to be written into law, and I suspect that they were pretty amazed that the Government said yes to all of them. The provision that we are talking about in relation to previous convictions probably falls into the second category, or the rather uncharitable interpretation of the Bill.
The hon. Member for Stafford and the hon. and learned Member for Redcar made powerful speeches in which they tried to give a charitable interpretation of what the Government are doing. However, I say to them that they have to ask why the Government are going ahead with clause 85(1)(d) if its purpose is to prejudice a trial and poison the well. I say to the hon. Member for Stafford that he needs to ask the Government why they are going ahead with a provision that goes beyond what the Law Society recommended if not to send some sort of message about toughness that I think is inappropriate and will not be right.
On the whole, I am in favour of giving the jury more information. I want instinctively to trust the jury. I am not a barrister, but I have served on a jury in a trial and I had great faith in the common sense of the jury system in getting it right. I have some form on the issue, having worked in the Home Office when my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), who is not a known liberal, was Home Secretary and reformed the right to silence. To me, that was a wholly appropriate and welcome change. It gave juries the chance to consider more information and find out whether someone had said something when they were first arrested and then decided to stay silent afterwards. Information that juries could not previously consider could be brought out in court and commented on as a result of the changes that we made as a Government.
I think that the provision before us is entirely different. As several hon. Members have mentioned—I shall not repeat their remarks—much of what is contained in paragraphs (a) to (h) of clause 85(1) tries to codify current practice and what currently happens in the law. The real problem is paragraph (d), which is the big kahuna, as it were. Let me repeat it:
- "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".
- "two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State."
When we vote tonight, we must ask ourselves whether we want juries to think, "He did it before, so he has done it again." That is what clause 85(1)(d) tries to do. I have consulted lawyers about clause 85, and they all point to—[Interruption.] I do not believe that that is my pager.
Mr. Deputy Speaker: Order. Whoever has that machine please silence it.
Mr. Cameron: Thank you, Mr. Deputy Speaker. I look forward to seeing how the Hansard writers will report that—perhaps with dots and dashes.
Everyone to whom I have spoken says that clause 85(1)(d) is an attempt to prejudice the trial, to poison the well. There can be no other reason for setting it out as it has been drafted.
Mr. Kidney: The hon. Gentleman has twice said "Law Society", when he means Law Commission. Does he consider the Law Commission's draft Bill to be much more acceptable than the Government's present proposal?
Mr. Cameron: I certainly believe that it is, but having listened to the argument, in many ways the neatest solution would be to take out paragraph (d), as
proposed by the hon. and learned Member for Redcar. However, it is for the Government to go away, listen to the debate in the other place and come up with a codification of the current law that does not go nearly as far as clause 85(1)(d), because, from everything that I have heard, that provision will prejudice the trial.I wish to make two final points. First, many hon. Members have talked about how police investigations will be skewed if clause 85 becomes law, and they are right. Police officers are human beings. What will happen in a police investigation, when they are under enormous pressure to get a result and they have one, two, three or four suspects who have previous? Will they go after them? Of course they will; they are human beings and they will want to get a result, by rounding up the usual suspects—a cliché, I know, but I really believe that that will happen.
The second and final point is about miscarriages of justice. If we pass clause 85 into law unamended, we may get more convictions in the short term, as juries will hear about previous convictions. If the aim is to convict more criminals, I suppose that that will be seen as a success, but I truly believe that, in the longer term, we will live to regret clause 85. I believe that because we have been here before with police evidence. In trials 20 years ago, police evidence was believed far more in the courts than it is today.
Whether we like it or we like it not—as my right hon. Friend the Member for Suffolk, Coastal said—public appreciation and trust in the police has declined. Certainly in courtrooms, police evidence is not always wholly trusted by the jury, and barristers perhaps quite rightly point to previous occasions where police evidence has been tainted or whatever. As a result, it has been more difficult to get a conviction.
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