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Hilary Benn: If my hon. and learned Friend will bear with me, I shall complete the point.
In the second case, the previous convictions were clearly not admitted. The right hon. Member for Suffolk, Coastal (Mr. Gummer) spoke with passion in support of his view that the Bill undermined justice. I ask him to reflect whether the two examples that I have given do not also undermine justice and the public's confidence in the system. The public are not lawyers, and I am not a lawyer, either. They look at the way in which the present rules can be interpreted, and say from a lay person's perspective, but with no less force than the arguments that we have heard from Members much more qualified than I in matters legal, that the current system does not make sense.
Mr. Gummer: Surely that proves my point. The evidence in both those cases ought to have been admitted under what reasonable people understand the law to be. If the Government were merely putting into better terms, more neatly and conveniently, what they understood the law to be, that would be one thing, and I would support it. My argument is that, in the course of doing that, they did not follow the suggestion of the Law Commission but added to it some twirls and baubles of their own, which are themselves dangerous and do not admit of being within the kind of attitude with which we all agree.
Hilary Benn: I hear the argument that the right hon. Gentleman advances. The conclusion that I draw, however, from the two examples that I have just given is that they make the case for shifting the way in which the system works in favour of an inclusionary approach subject to appropriate safeguards. [Interruption.] The right hon. Gentleman might disagree, but that is the Government's view. On the evidence of those two examplesthere are othersand despite the fact that a potentially wide range of bad character evidence can currently be admitted, it is not the case that those provisions are being applied consistently.
Hilary Benn: I shall give way to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), and then to my hon. and learned Friend the Member for Medway.
Simon Hughes: Does the Minister not accept that the two cases that he mentioned could lead perfectly
reasonably to a different conclusion? That conclusion would be that, if we have not got it quite right in law as to when similar facts should be admitted, we need to address that problem. Equally, if evidence is excluded when it is directly relevant to a case, it should be able to be included. That does not, however, lead automatically to the conclusion that the presumption should be that not only past criminal convictions but past history should be admitted unless certain qualifications apply.
Hilary Benn: The hon. Gentleman may advance that argument, but it is not one that the Government accept. We are trying to find a system that will provide reasonable certainty and simplicity in the way in which it operates, because the current arrangements are very confusing and are applied inconsistently. Different people reach different judgments in different circumstances. That is the case for our setting out in clause 85 the rules as to the circumstances in which bad character evidence can be admitted, together with the safeguards. I would say to my hon. Friend the Member for Stafford that that is one reason why we are not in favour of having leave arrangements. My hon. and learned Friend the Member for Redcar (Vera Baird) set out extremely clearly why, in each of the categoriesI know that we take a different view in regard to paragraph (d)there are cogent arguments for the law being set out in the way that it is, in the clause as drafted.
Mr. Marshall-Andrews: I am grateful to the Minister for giving way. I will not weary him with this point, but if the doctor case is going to be used as a seminal example in the argument for a serious change in the law, will he tell us why that doctor's form was not admitted before the jury? On the facts that he has given us, any lawyer would say that that was manifestly a case in which the doctor's form should have gone in. That might have been a case not of an aberrant law but of an aberrant judge.
Hilary Benn: The honest answer is that I do not know why that evidence was not included, but my hon. and learned Friend's point does not make the case. [Interruption.] No, what it illustrates is the case for a change in the approach to these matters, and clause 85 provides for an inclusionary approach, subject to safeguards. I would argue strongly that such an approach will deal with the current problem of inconsistent application of the law while addressing the concerns that have been raised about the circumstances in which certain evidence can be brought to bear in a case. In those circumstances, clause 85(3) provides for the protection to which I shall turn in a moment.
Mr. Letwin: Does the Minister not accept that the case to which he referred is a case of similar fact?
Hilary Benn: Indeed I doand the question is, if the system currently allows such evidence to be admitted, why should the same not be allowed in that case and in others of which Members will be aware? The problem that the right hon. Gentleman must address is the way in which the system currently does not work. He need
not take my word for that; he need only look at what the Law Commission and Lord Justice Auld had to say about it.Clause 85(1)(d) provides a straightforward route for the admission of evidence of the convictions we are discussing, so that the law can be transparent and its effects readily anticipated and so that it can be consistently applied, avoiding protracted arguments about relevance whenever possible but subject to the safeguards in subsection (3). The clause does not make evidence of such convictions any more admissible than it would otherwise be: the exclusionary test ensures the exclusion of evidence that is insufficiently relevant. That is a key point. Paragraphs (d) and (e) provide for two slightly different routes, both of which are subject to the same safeguards.
Vera Baird: I hope that I can make my hon. Friend understand that giving a judge the right to exclude evidence of previous convictions in exceptional circumstances will not deal with the situation. Although judges are not always ready to receive signals from the House, they are obliged to accept the law as we lay it down. We are about to enact a measure stating that evidence is admissible even if it is utterly irrelevant. How can any discretion allow such evidence to be excluded when we have told judges, in each and every case, "In it goes"?
Hilary Benn: The answer is simple. When considering an application under clause 85(3), a judge must ultimately decide whether the probative value of evidence covered by paragraphs (d), (e) and (h) outweighs the prejudicial effect. When representations are made on application by a defendant under subsection (3), surely that is the right test and the one that provides the safeguards.
The hon. Member for Witney (Mr. Cameron) got it right when he said that this was about trying to achieve a balance that would give juries the picture and then enable them to make a decision in the end. The Government believe that the intention behind the new inclusionary rule is that evidence of this kind should be capable of being heard, subject to the safeguards in the Bill. It is on that basis that I commend clause 85 to the House.
Simon Hughes: We have heard 11 speeches during this guillotined debate, and apart from the Minister's, not one voice has been raised in support of the Government's proposition. It has been opposed in 10 speeches and two interventions. Representatives of six parties have said they are unhappy about it.
There is a difference of view about how we should proceed, and we respect each other's differences, but the overriding view is clearly this: the Government's proposal, which they say will preserve in English law the requirement for the prosecution to prove beyond reasonable doubt that a defendant is guilty and for the defendant to be presumed innocent at the outset, will not in fact protect that position adequately.
This is partly technical and complicated, and three options have been discussed. I hope that the House will support at least one of the proposals for change. The
Chairman of the Select Committee said that, although this would not be his preferred option, he was willing to support our proposal for the removal of clause 85 and the rebuilding of that part of the Bill. The right hon. Member for West Dorset (Mr. Letwin) said that we should introduce a better protection. The hon. and learned Member for Redcar (Vera Baird) suggested that we concentrate on deleting one measure, under which evidence of previous convictions would automatically be admitted. I urge the House to support at least one of those options, but above all I urge the Government to listen to the clear voice saying that this is a dangerous proposal, which goes far further than previous recommendations, should not be accepted by Parliament and should no longer be proposed by the Government.Question put, That the amendment be made:
The House divided: Ayes 68, Noes 290.
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