Under clause 93(3), the evidence will be admitted unless the defendant can show that
"the admission of the evidence would have such an adverse effect on the fairness".
Once statute provides for the admission of this evidence, however, it is difficult to see how it can ever be struck out under that subsection.
My right hon. and learned Friend is right that it is put in a statutory form, although there is a caveat that enables a judge to exclude it in the interests of fairness. To return to my point, why should it be put down in statutory form that some forms of evidence should be admitted when the basic rule, and the obvious
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common-sense approach, is that it will be largely irrelevant to the matter at issue? It is on that matter that the Government and those in another place have drifted apart. That is why the Bill was amended to include the Law Commission's proposals and nothing but the Law Commission's proposals. If the Minister wants my opinion as to which is the better approach, I will say now, and over and over again, that the Law Commission proposals are infinitely superior to what the Government have done. I also think that they will achieve the Government's desired objective, which is to ensure that, where relevant, evidence is included.
The Law Commission's report is excellent, and the Government's approach is worrying because it seems to me that they have pushed much further than the Law Commission ever envisaged in setting out a principle that a person's past character and previous convictions should automatically go before a court. The distortion to the system of justice that that threatens to introduce, and the risks of miscarriage that are attendant on it, are very serious.
It is much more serious than we might initially think. I am delighted that the Government are no longer suggesting that they should hold on to clause 90(1)(b), which refers to behaviour that
"might be viewed with disapproval by a reasonable person",
which, for goodness' sake, could mean anything. They now think that they will improve matters with what is on page 3083 of the amendment paper:
"leave out from beginning to 'evidence' in line 2 . . . and insert: 'References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than'".
"Misconduct" could be well short of criminal conduct, yet the Government think that that is an improvement on what the other place has removed. I find that extremely worrying, and I wish that the Government would come clean and admit that they want to drive a coach and horses through this aspect of the criminal law and produce very strange results.
The Minister will have to answer as to what the Government's intentions are. Certainly, however, the practical consequences of the Government's intentions are an unhappy state of affairs.
To move on, we have always indicated to the Government that we accepted the principle of the Law Commission's recommendations and we were therefore willing to engage in a dialogue with the Government to try to resolve this matter. We have been trying to do that at frequent intervals. We have been helped by some Labour Back Benchers who have highlighted some areas that remain of great concern. I shall touch on two of them. First, at clause 93(1)(d), the dreadful entry remains:
"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . . 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".
That is a terrible clause. To say that bad character should be adduced from that in relation to the current trial has been a constant source of anxiety, unless it is
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important explanatory evidence, but in that instance it is kept totally separate from important explanatory evidence.
It is worse than that, because there is no requirement that the previous offence should be in any way relevant or probative of the offence with which the defendant is charged at the relevant trial.
Yes, indeedperhaps I expressed myself badly. That is why I returned to the point about it not even having to be important explanatory evidenceimportant evidence of similar fact, which already happens, or something exceptional that provided a proper link between the previous convictions and the current matter. That is a serious issue.
My hon. Friend is being very tolerant. Was it suggested in Committee or during other deliberations on the clause that no one should be convicted only on evidence of a previous conviction?
Yes, indeed; the Government told us that that would not happen, but it remains an area of anxiety.
I return to clause 96"'Matter in issue between the defendant and the prosecution'". Subsection (1) says:
"For the purposes of section 93(1)(e)"
that is the bit that I read to my hon. and learned Friend the Member for Harborough (Mr. Garnier)
"the matters in issue between the defendant and the prosecution include . . . the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".
That is a completely circular argument. How can a matter in issue between the defendant and the prosecution, when considering whether a person would burgle a house, be whether the person has a propensity to commit offences of that kindunless, and this is where my colleagues are right, we are reaching a point at which the Government will tell us that people may be convicted in the future on the basis of propensity alone?
We have been trying to sort out these problems. I noted that when the matter came up in the other place on 4 November, Baroness Scotland of Asthal said:
"We recognise that concerns have been expressed both here and in another place about how the clause operates. We are therefore prepared to look further at the issue to see whether we might achieve our aims in another more acceptable way."[Official Report, House of Lords, 4 November 2003; Vol. 654, c. 739.]
I was waiting for the Government amendments to come through last night and I expected a radical approach and a response to what the hon. and learned Member for Redcar (Vera Baird) had said about the dreadful clause 93(1)(d). There was silence on that. I accept that the Government have addressed a few issues, with what I accept are more than minor changes, but the real nub of the concerns of one hon. Member after another since the earliest stage of the Bill has not been touched on.
I urge the Government to accept the Law Commission's proposals and find out how they work. If they do not work as the Government intend, because there is a continuing problem that evidence that should
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be admitted is not admitted, they can say, "Look, we need to do some more here." We are all sensible people who have a pragmatic approach, so I am sure that they would get a sensible response. Failing that, will the Minister and the Government please take on board representations that have been made on these important matters, if they really intend to restore the clauses in such a way? The situation remains unsatisfactory, so I tell the Minister with some regret, because I had hoped that we could resolve the problem sensibly, that we shall vote against the Government's motion to disagree to Lords amendment No. 114.
I shall speak briefly about bad character. Evidence of bad character has been admissible under Acts of Parliament for more than 100 years. As the hon. Member for Beaconsfield (Mr. Grieve) said, the Law Commission became involved because the application of previous statute law was unsatisfactory from case to case. There is certainly a good argument for reform. We are faced with a choice between the Government's reform and that of the Law Commission, which the hon. Gentleman strongly advocated, as I have done before and shall do today.
My hon. Friend the Minister announced three welcome alterations to the system. First, he announced greater caution when dealing with convictions of juveniles, which is very welcome. Secondly, he gave us the definition of bad character. The hon. Member for Beaconsfield said that the definition was unsatisfactory, but in fairness, the Law Commission had equally great difficulty finding an acceptable definition. I do not think that everyone would dance in the streets about its definition either, but people are prepared to support it. The third announcement was that the Government will require a prosecution intending to admit evidence of bad character to give notice so that a defendant may object and ask the judge to rule that such evidence should not be admitted. I have not seen the text of the amendment that will implement that, but I accept what he said.
Eight categories of evidence were admissible as evidence of bad character in the original clause 93, which the Government wish to restore to the Bill. However, the judge has the power to exclude the evidence on the defendant's objection for only three categories, so no such power applies to five categories. Two of those five categories would be admissible only with the defendant's agreementif all parties agreed to the evidence being admissible, or if the defendant adduced the evidence. Therefore, there is no power for a defendant to stop evidence being admitted, no matter how unjust his or her legal representatives think that is, under three categories.
That brings us to the great divide on whether the basic rule should be either that evidence is admissible unless there is a reason to object to it, or that it is admissible only if the judge first gives leave for it. The Law Commission is mostly in the second camp, although, to correct the hon. Member for Beaconsfield slightly, it says that there are core issues for which evidence should be admissible without leave.