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Mr. Hogg: I support what the hon. Gentleman is saying. Will he make the point, as did my hon. Friend
the Member for Beaconsfield, that a draft Bill was attached to the Law Commission's report? The draft Bill was a form of pre-statutory consultation, and its provisions, which form the basis of the Lords amendment, received a wide welcome in the profession.
Mr. Kidney: I am happy to agree that there was wide consultation on the draft Bill and that many positive responses were made to it. That is one reason why I think that it would be acceptable legislation.
I prefer the Law Commission's formulation, because a judge should give leave for the admission of such evidence in circumstances outside the core situations to ensure that there is a fair trial and a link between bad character and the probative value of the case. The Bill provides for more pre-trial management of a case, such as the defence's requirement to provide more disclosure at an earlier stage, so a judge will intervene at early stages to ensure that evidence is in order. It is simple and convenient to sort out such issues before a trial to allow it to proceed smoothly, so the Law Commission's formulation is the more acceptable of the two.
Mr. Heath: The subject of the group of amendments is extremely important and has been one of the principal areas of contention during consideration of the Bill. However, that should not have happened, because if the Government had been more conciliatory and had approached the subject more constructively from the start, we could have secured agreement among all parties that there is a need for codification and reform of the present arrangements on bad character because they do not work well—that is common ground among us. We could have reached a satisfactory conclusion for all at an early stage. It is sad that the issue has been a major barrier between the Government and not only the Opposition in the House and the other place but other voices outside the House, because it was entirely unnecessary.
I do not want to repeat what the hon. Member for Beaconsfield (Mr. Grieve) has said about hearsay evidence. We all treat hearsay evidence and its admissibility with much caution because of the inherent dangers of a witness giving a report of what someone else said to them as evidence in a court of law. The problems with that are manifest. There is no way of determining satisfactorily in court that a person said what a witness reported had been said or whether what was reported to have been said was based on truth. Although hearsay evidence can be valuable in some cases, it must be treated with caution.
I agree with the hon. Member for Beaconsfield that the Government's proposals are better than those that we have considered before, but I still have worries, which were amply expressed by the hon. and learned Member for Harborough (Mr. Garnier). I remain to be convinced that the Government have proposed a watertight solution, but it is clear that movement has been made in the direction of the arguments that we put in Committee and on Report and that my noble Friend Lord Thomas of Gresford made in another place. I am content to leave things at that and to see how the measure works in practice. I am clear in my mind, however, that we must monitor it carefully and may have to return to it if the safeguards prove insufficient.
On the more serious issue of bad character evidence, Ministers need to do a better job of persuading us that their judgment is to be preferred to that of the Law Commission, which spent four years looking carefully at the issue, took a great deal of evidence and reasoned its conclusions in a way that satisfied most people who have a professional interest. Many of us think that its proposals were satisfactory for dealing with the current state of the law. For the Minister simply to assert that his approach is better is unlikely to win many friends in this House who are not already persuaded.
It is clear throughout the Law Commission's report that it took great care to consider the result of its proposals. It said:
- "If we had taken the approach of recommending that previous convictions should, as a rule, be presented to the fact-finders, however marginally relevant they might be and regardless of how prejudicial they might be, or, conversely, of recommending that they should never be adduced save where it would be an affront to common sense to exclude them, then we might have been able to answer such a question"—
- "with confidence."
- "In our view we would simply have been mistaken to take either of these approaches. Their apparent attractive simplicity ignores the complexity and variety of factual situations to which they would have to apply."
Our argument is not complex. The basic premise in British law is of a presumption of innocence. A person on trial for a specific crime should be judged on the basis of the evidence that pertains to that crime, not to previous circumstances, which are irrelevant. That is why we were cautious at an early stage about the definition of bad character. It is clear that the earlier definition was unacceptable. We could all think of people whom many reasonable people might view with disapproval but who do not have a higher propensity to commit criminal offences. The new definition of misconduct is also lax, which worries me.
The big issue relates to the exclusionary approach, favoured by the Law Commission, or the inclusionary approach, favoured by the Government. We differ on how to achieve a result that we share as a common objective. That is a foolish position to be in at this late stage of a protracted and complicated Bill. If we share the same objective, the Law Commission has provided us with an objective way of achieving it. In that case, why on earth are Ministers holding out for their own interpretation of the best way forward? They can adduce no particular evidence of superiority for that approach, which poses clear dangers as identified by the Law Commission in its evidence.
The Law Commission states in paragraph 6.65 of its report:
- "Not all evidence of bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion."
6.45 pm
Mr. Hogg: Does the hon. Gentleman agree that if we were to rely on the Law Commission's language contained in the passage that he just read out, it would enable a defendant who faces evidence of previous convictions to contend that his trial cannot be fair? That brings into play article 6 considerations of human rights legislation.
Mr. Heath: The right hon. and learned Gentleman is much more expert in such matters than I am. I accept his contention that the sentiment behind the language could form the basis of a submission under human rights legislation. I have no way of knowing whether the words of the Law Commission's report would be held to be relevant, but the sentiment expressed is pertinent to the debate. I suspect it will not be long before such a matter is challenged in the courts. We would all prefer to avoid that, which we can do if we have the bedrock of a group of proposals from the Law Commission on which we can depend. That is why the Liberal Democrats support the opinion of the other place and will continue to reject the Minister's view unless he provides better arguments for what he proposes.
Mr. Eric Forth (Bromley and Chislehurst): On a point of order, Mr. Speaker. Given the Government's ridiculous and vicious timetabling of this part of our considerations, do you share my concern that we will almost certainly not reach proper consideration of Lords amendment No. 137, which I characterise as the Bishop of Chester provision, dealing as it does with controversial and sensitive matters? A large number of Christian folk are worried about the measure's implications. Can anything be done at this stage under your good offices, Mr. Speaker, to give us a chance at least to hear what the Minister has to say about the provision so that we can find out what is in the Government's mind and what they intend to do? The issue is sensitive and contemporary. I just hope that something can be done even at this late stage to allow us to deal with it properly.
Mr. Speaker: The right hon. Gentleman knows that I serve the House. It has decided on a programme motion and I am bound by its terms.
Vera Baird: In the unhappy tussle between the Law Commission's proposals and the current proposals in the Bill, there is excellent room for compromise. Is it really critical whether the presumption of bad character is all admissible or all inadmissible so long as it is all within the ambit of clause 93(3), which allows the judge to exercise a decision on whether evidence is admitted or not? In particular, now that the Minister has said that there will be notice of every application to admit previous bad character, everyone has ample
opportunity to prepare a case to argue that even if the bad character falls under the categories set out in 93(1)(a) to (h), none the less it should be excluded or included according to subsection (3). It does not matter which way around it is. All it is necessary to do—the Government give nothing away by doing it—is to allow the judge to exercise a decision over paragraphs (c) and (g).
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