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Paul Goggins: It is good practice for the Government to examine the impact of their legislation in any sphere. Earlier today we discussed the Sexual Offences Bill, whose implementation we shall need to monitor carefully. The same will be true of this Bill. I accept what my right hon. Friend says about some of the dangers. We acknowledge that there would be dangers if the provisions were unrestrained, but I have already referred to the requirement for notice to be given and made the point that the defence has the opportunity, without the jury in the courtroom, to argue that a particular piece of evidence that the prosecution wants to bring forward is not relevant or is more prejudicial than probative. I think that we have put in place safeguards that will reassure my right hon. Friend, but I certainly note his concerns.
On hearsay evidence, the relevant amendment that we are discussing would remove clause 107. That clause is a key part of the new statutory scheme. It provides an overarching statement of the circumstances in which hearsay evidence is admissible, setting the context for the rest of that part of Bill. Those who opposed the clause in the other place did so for two very different reasons.
First, objections were raised in general to the scheme proposed in the Bill, to which clause 107 provides the gateway. We believe that those objections are misplaced. The Bill provides a clear scheme based on recognised and established categories of admissibility, but consolidates the current rules and restates them comprehensively and coherently. As the House will know, the Lord Chief Justice has suggested that something simpler is needed, akin to the civil rules of evidence. We have given that careful consideration, but do not believe that a complete relaxation of the hearsay rule, as in civil proceedings, would be appropriate for criminal cases where different concerns, such as the fairness of the proceedings, take precedence. In our view, it is important to provide a clear structure for the admission of hearsay evidence, and we consider that the best framework is based on clear and accepted
categories of admissibility, with residual discretion to operate in the interests of justice.That brings me to the second concern that has been expressed—the extent to which the courts should have discretion to admit evidence that does not fall within one of the recognised categories. That is dealt with in clause 107(1)(d). The Government remain firmly of the view that that is an important aspect of the scheme. Certainly, it was considered necessary by the Law Commission, which recommended a provision along those lines. It might be helpful if I give an example of why that sort of discretion is needed.
Let us take a case where a man is accused of murdering his ex-wife. His defence is that he was 200 miles away at the time of her death. He has only one alibi—a neighbour's seven-year-old child saw him when he popped out to walk his dog. The child gives a statement to the police the next day confirming the man's presence at home. She remembers the incident so well because he stopped to let her pet the dog. But by the time of the trial, she cannot remember anything about it at all. The jury cannot be told about her statement because it would be hearsay. Juries in other countries, such as Canada, are trusted to hear that type of evidence, so why can they not be trusted to do so in this country?
That example is not far-fetched—the Court of Appeal dealt with a similar problem in the case of Thomas, when it upheld the judge's ruling that the statement was inadmissible hearsay, but it allowed the appeal as a conviction obtained in such circumstances could not be regarded as safe. That illustrates the need for some form of discretion to admit evidence outside of the categories provided in the Bill.
We have listened carefully to the concerns that have been expressed about whether the discretion in subsection (1)(d) is insufficiently focused. Government amendment (a) to Lords amendment No. 132 will tighten that provision to ensure that evidence can be admitted only where doing so is in the interests of justice. That will allow other out-of-court statements to be used where they are cogent and reliable.
There is a wide consensus in favour of reforming those two areas of the law. This is not about securing convictions at the expense of defendants' rights. Clear safeguards have been built into the scheme to ensure that the burden of proof continues to rest on the prosecution and that trials are conducted fairly. However, this is about ensuring that the rules are clear and facilitate the admission of evidence of previous offending or other misconduct where doing so is appropriate and safe. Our proposals have drawn substantially on the excellent work undertaken by the Law Commission. We consider it important that the original proposals in the Bill, amended as I have outlined, are restored.
Mr. Grieve: Perhaps I can start in a conciliatory tone by dealing with hearsay evidence first, because the Government have gone a considerable distance towards meeting the anxieties about hearsay evidence that have been expressed in the House and in another place. There is general agreement that revisiting the hearsay rules is desirable and that there are good reasons why certain forms of hearsay should be admissible in front of a jury,
who should be trusted with such information, with the judge providing guidance and explanation about the fact that it is not first-hand evidence and on how to approach it with caution.As the Minister has rightly explained, the anxiety was that the safeguards were insufficient, particularly in relation to multiple hearsay. Government amendment (a) to Lords amendment No. 132, which relates to clause 107(1)(d), is very small, but it is of considerable significance. It goes a long way to meeting those objections, particularly as the anxiety in respect of subsection (1)(d) was that it clearly implied in its original form, as the Minister will appreciate, that such evidence would be withheld only in the most exceptional circumstances. It is clear that the interests of justice require a judge to weigh that on each occasion without pressure being put on him by the words:
- "despite the difficulties there may be in challenging the statement".
The Government have dealt with that issue, and although I obviously cannot be sure what will happen when the Bill returns, I am satisfied that they have handled this matter correctly. I am grateful to the Minister, even at the eleventh hour and 59 minutes—or perhaps even beyond the twelfth hour—for the fact that we have succeeded in getting that right. The Government have come up with a number of amendments in respect of bad character that appear to be worthy and certainly represent an improvement.
6.15 pm
Mr. Garnier: Perhaps this intervention comes about through slowness in my intellect. I have listened to what the Minister and my hon. Friend have said, but I am still not persuaded by their happy acceptance that Government amendment (a) to Lords amendment No. 132 will do what they think it is intended to do. I wonder whether my hon. Friend will be patient enough to explain to me in a little more detail why he thinks that that Government amendment will do what he hopes it will do.
Mr. Grieve: The Government intend that the amendment will provide far greater discretion to exclude such evidence where the judge considers that the interests of justice require that it should not be admitted, so the amendment will beef up judicial discretion. To that extent—I accept to that extent only—it represents a significant improvement, which may go some way to reassure those in the other place who were worried about the issue that the Government have taken their concerns on board.
There are other ways to approach that matter, and my hon. and learned Friend is right to suggest that substantial anxiety was expressed about hearsay evidence in Committee and in the other place. I am certainly not saying that the Government's proposal
represents the panacea for all ills, but it is a significant improvement in the light of the previous criticisms. I do not think that I can go beyond that.
Mr. Garnier: I am most grateful to my hon. Friend for saying that, but I want to try to project myself forward. How would I sum up to a jury—
Mr. Garnier: I know that the hon. Gentleman is not terribly interested in the practical consequences of such Bills, but we—[Interruption.] I do not think that he can intervene on an intervention. We have to be sure that the laws that we pass in the House are not only attractive to us as legislators but can be put into practical effect in the law courts. I am sorry for the hon. Gentleman, but the courts are where the law is applied when people are on trial for their liberty. I am not suggesting that my hon. Friend is getting this wrong, but perhaps I am being very dim about it. I just want him to be able to convince me that when we push the provision through into law and he and I have to apply it as either advocates or judges, it will do what we think it will do. I am yet to be convinced that it will do so.
Mr. Grieve: My hon. and learned Friend makes a perfectly good point. One of the anxieties consistently expressed about the Bill was that it would make judges' lives more difficult in summing up cases to juries. Some of the issues that will be presented become more complex. Perhaps, in fairness to the Government, I should say that the mischief might not lie entirely with them, because the argument that more hearsay evidence should be admitted is a pressure that has come from a number of areas outside Government as well. Indeed, I think that the Minister alluded to the fact that the Lord Chief Justice has expressed views about the desirability of admitting more hearsay evidence—the Minister may confirm that or correct what I say—and a belief that more hearsay evidence should be available to juries, but balanced, of course, by judicial explanation.
I have no doubt, however, that my hon. and learned Friend is right to suggest that judicial explanation puts more difficulty and pressure on judges and, of course, there is a greater of possibility of getting it wrong. If they get it wrong, there will be appeals. If there are appeals, verdicts may be overturned because judges failed to direct juries properly on the weight to be attached to certain evidence. My hon. and learned Friend is in no sense wrong in asking whether I have got it right. I have to accept that a bit of a wing and a prayer is involved.
Nevertheless, the point made by the Minister about the denial of hearsay evidence sometimes being greatly to the prejudice of a defendant is absolutely correct. It seems to me that that is a correct analysis of the current state of the law. In relation to saying that hearsay should be left squarely as it is, it has in fact been eroded in a number of directions, as my hon. and learned Friend knows, and practising in the criminal courts one notices how it creeps in almost by agreement between the prosecution and the defence with increasing regularity, when it is felt that, in the interests of justice, that should happen.
In response to my hon. and learned Friend, if this had been my Bill—or the Opposition in government's Bill—we would not have started from here. Having started from here, however, and having had some serious discussions with the Minister—we have never had disputes, and we have had remarkably good relations—I accept that the current drafting goes some way towards meeting the objections that have been raised previously. That is the best way that I can leave the matter.
To turn to the nub of the issue, bad character—I want to allow others to speak on the matter—their lordships read the clauses drafted by the Government, which are of some complexity, and concluded that they were seriously flawed. To see that, one needs only to read the debate in the House of Lords, in which the Minister acknowledged that the participation and level of the discussion had been of a very high quality. They were so exercised that they took the original proposals of the Law Commission and—to remind the Minister of what happened—the then Home Secretary, who is now the Leader of the Opposition, being concerned about the issues surrounding bad character, referred the matter to the Law Commission, which spent about four years taking evidence, discussing the issue and trying to come up with a satisfactory outcome that could codify the rules on admissibility of previous convictions and bad character. Having done that, it could try to ensure that a marked reluctance by judges, which is widely accepted, to admit such evidence—because of the absence of guidelines and the fear that it would be overturned on appeal if they did—might be alleviated to an extent and that more of this evidence could come in when it was relevant and helpful to achieving justice. That is why the Law Commission came up with its report. Having done so, it even came up with a model Bill that could be presented to the House and turned into law.
Those in the other place were concerned because the Government had departed radically from the Law Commission proposals. Above all, as the Minister has admitted, that was because the Law Commission always envisaged that the basic rule would normally be that such evidence is excluded unless there is a good reason to include it. The Government's view, for reasons that I have never found satisfactory, is that it should be included unless its exclusion can be justified. That is a very important difference, which, as I tried to take up with the Minister earlier, is nonsense. One has only to consider that that category of evidence is irrelevant unless it has a connection to recognise that saying that it should normally be included turns the whole argument on its head.
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