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Mr. Hogg: There may be merit in that approach, but surely it is the business of Parliament to set out the criteria that will enable the judge to determine the question of fairness.

Vera Baird: I appreciate the point but I believe that the judge would simply make up his mind about any application under clause 93(3). There would be no burden of proof either way; the judge would decide either that the evidence should be admitted or that it was unfair and should be excluded. That has everything to commend it as a compromise course that gives nothing away. My hon. Friend the Under-Secretary and my right hon. Friend the Secretary of State are at pains to exhort us to trust the judges, not least to try issues of fact instead of juries. Why cannot they simply trust the judges in the case we are considering and allow them to make the decision about every application?

Mr. Garnier: The hon. and learned Lady knows that the relevant section of the Police and Criminal Evidence Act 1984—it may be section 74—gives the judge discretion to exclude evidence. Has she applied her mind to the way in which the Bill will sit with that power? We appear to have two conflicting measures that deal with inclusion or exclusion of evidence, and the Government may not have tackled the matter. Can she help me?

Vera Baird: I believe that the hon. and learned Gentleman is thinking of section 78 of PACE, which is couched in similar terms to clause 93(3). If its criteria add anything to the test in section 78, it would be on top of the test. Section 78 applies across the board to all sorts of evidence and cannot be excluded by another provision.

Let me deal briefly with paragraph (d) of clause 93(1), because it is the nub of the issue. It allows evidence of previous convictions to be admitted simply because they are there. What is the provision for? If the convictions are probative—if they prove or tend to prove something—they would be admitted under paragraph (f). If they are even slightly relevant to the case, they would be admitted under paragraph (e). What, therefore, is the purpose of paragraph (d)? It can only be to include them even though they are irrelevant and do not prove anything. That is unfair. I do not understand why the Government want to be in a position to do that.

How will the discretion be exercised? Opposition Members asked that question. Evidence that can currently be included under paragraph (d) is subject to the discretion. Clause 93(1) provides that evidence is admissible, and under paragraph (d) it is admissible simply because it exists. The court has to decide whether to exercise its discretion to exclude it if it is unfair, but it is always unfair to admit irrelevant and non-probative

18 Nov 2003 : Column 718

previous convictions. How will the judge exercise his discretion? He will have to say to himself, "Parliament says that it is admissible but it's obviously unfair so I must exclude what Parliament has said in statute must be included." That does not hold together. The paragraph is unnecessary. It is also bad, dangerous and pointless, and I urge Ministers to reconsider it.

Mr. Hogg: I agree with the analysis of the hon. and learned Member for Redcar (Vera Baird). Her points are correct. The clause already provides for admitting probative and relevant evidence. Paragraph (d) will have a simple effect: in cases where there are previous convictions, they will be admitted. Like her, I cannot understand how the trial judge can exclude something that Parliament has expressly authorised.

The effect will be twofold. First, many miscarriages of justice will occur because of the previous convictions. The second point is slightly different but the consequence is much the same: the police will arrest and charge many people simply because they know of similar previous offences. That will lead to considerable injustice. I suspect that the courts will eventually decide that the paragraph offends against article 6 of the European convention on human rights because it prevents an individual defendant from receiving a fair trial on the basis of the evidence for the single offence with which he is charged.

We have a choice between the Law Commission's proposals, which are incorporated substantially in the Lords amendments, and the Government's. The House should clearly prefer the Law Commission's proposals. They were the subject of considerable consultation and of a draft Bill, which was published and examined at great length. Many noble Lords, who know much about the subject, voted authoritatively for the proposals. I commend them to hon. Members. My hon. and learned Friend the Member for Harborough (Mr. Garnier) is anxious to speak and I shall therefore sit down to enable him to do so.

Mr. Garnier: I have a suspicion that anything I say may undo what my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. and learned Member for Redcar (Vera Baird) said. I could not agree more with their comments and I hope that the Government take them on board. Their points are self-evidently good and should have been accepted earlier.

There are two simple points about bad character evidence. It is said, first, that it suggests that the person is likely to have committed the crime with which he is currently charged, and secondly, that it tends to undermine his credit. I have never been convinced by either of the arguments, although I have ritualistically had to recite them when summing up evidence to juries. However, I am more dismayed by the Government's approach to bad character in the Bill. Nobody of sound mind could believe that the original drafting of clause 91, which dealt with behaviour that would be viewed with disapproval by a reasonable person, was sensible. Despite having the advantage of the advice of the other place and the Law Commission report, the Government devised an amendment that refers to "misconduct" on the part of the person who is alleged to have a bad character.

18 Nov 2003 : Column 719

Misconduct means nothing in criminal legislation. Until the Government define it more seriously, the relevant part of the Bill, if not others, will be treated with great scepticism and, on my part, much contempt. I urge them to apply their mind to the matter with greater seriousness.

Paul Goggins: I am grateful for the welcome that the hon. Member for Beaconsfield (Mr. Grieve) gave to some of the movement that has happened through scrutiny in both Houses. During his remarks, there was an interesting discussion about the flexibility that interests of justice discretion provided. I was interested in his comments. Of course, safeguards are provided, but it is ultimately for the court to decide whether evidence is admissible. I believe that it is better to know about evidence that may be admissible and decide to exclude it than not to know about the existence of possibly relevant evidence.

We have debated at length the difference between the inclusive and exclusive approach to the matter. For most people outside the justice system, the difference between evidence that "is admissible if" and evidence that is "not admissible unless" is perhaps a rather fine point. However, it certainly does not mean that evidence is automatically included. Indeed, as I said to my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) there are safeguards in place, and the defence can argue that certain evidence is irrelevant and could be more prejudicial than probative. It is for the court to decide.

7 pm

I do not agree with the view of the hon. Member for Beaconsfield that the inclusive approach tends to distort. It is important that we should send out a message from the House in our debates on the Bill that we want to encourage the admission of evidence that could be admitted even now, but sadly, all too often is not. There has been a great deal of debate on clause 93(1)(d), and that has continued here this evening. I return again to the safeguards that are in place, which I have mentioned on previous occasions. I would say to the hon. Member for Beaconsfield that there would be no conviction solely on the basis of bad character. It would be open for the defence to argue that evidence was more prejudicial than probative.

My hon. Friend the Member for Stafford (Mr. Kidney) asked which amendments I was referring to earlier. It was amendments (a) to (e) to Lords amendment No. 29—

It being four and a half hours after the commencement of proceedings, Mr. Speaker proceeded to put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

The House divided: Ayes 345, Noes 201.

18 Nov 2003 : Column 720

Division No. 376
[7:01 pm


Abbott, Ms Diane
Adams, Irene (Paisley N)
Ainger, Nick
Ainsworth, Bob (Cov'try NE)
Alexander, Douglas
Allen, Graham
Anderson, rh Donald (Swansea E)
Anderson, Janet (Rossendale & Darwen)
Armstrong, rh Ms Hilary
Atherton, Ms Candy
Atkins, Charlotte
Austin, John
Bailey, Adrian
Banks, Tony
Barnes, Harry
Barron, rh Kevin
Battle, John
Bayley, Hugh
Beard, Nigel
Beckett, rh Margaret
Begg, Miss Anne
Bell, Stuart
Benn, rh Hilary
Bennett, Andrew
Benton, Joe (Bootle)
Berry, Roger
Best, Harold
Betts, Clive
Blackman, Liz
Blears, Ms Hazel
Blizzard, Bob
Blunkett, rh David
Boateng, rh Paul
, David
Bradley, rh Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brown, rh Nicholas (Newcastle E Wallsend)
Brown, Russell (Dumfries)
Browne, Desmond
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Byers, rh Stephen
Cairns, David
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Campbell, Ronnie (Blyth V)
Caplin, Ivor
Casale, Roger
Caton, Martin
Challen, Colin
Chapman, Ben (Wirral S)
Chaytor, David
Clapham, Michael
Clark, Mrs Helen (Peterborough)
Clark, Dr. Lynda (Edinburgh Pentlands)
Clark, Paul (Gillingham)
Clarke, rh Charles (Norwich S)
Clarke, rh Tom (Coatbridge & Chryston)
Clarke, Tony (Northampton S)
Clelland, David
Clwyd, Ann (Cynon V)
Coffey, Ms Ann
Cohen, Harry
Coleman, Iain
Colman, Tony
Cook, rh Robin (Livingston)
Cooper, Yvette
Cousins, Jim
Cranston, Ross
Crausby, David
Cruddas, Jon
Cryer, Ann (Keighley)
Cryer, John (Hornchurch)
Cummings, John
Cunningham, rh Dr. Jack (Copeland)
Cunningham, Jim (Coventry S)
Cunningham, Tony (Workington)
Darling, rh Alistair
Davey, Valerie (Bristol W)
David, Wayne
Davidson, Ian
Davies, rh Denzil (Llanelli)
Davies, Geraint (Croydon C)
Davis, rh Terry (B'ham Hodge H)
Dean, Mrs Janet
Denham, rh John
Dismore, Andrew
Dobbin, Jim (Heywood)
Dobson, rh Frank
Donohoe, Brian H.
Doran, Frank
Dowd, Jim (Lewisham W)
Drew, David (Stroud)
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff (Barnsley E)
Farrelly, Paul
Field, rh Frank (Birkenhead)
Fisher, Mark
Fitzpatrick, Jim
Fitzsimons, Mrs Lorna
Flint, Caroline
Flynn, Paul (Newport W)
Follett, Barbara
Foster, rh Derek
Foster, Michael (Worcester)
Foster, Michael Jabez (Hastings & Rye)
Francis, Dr. Hywel
Gapes, Mike (Ilford S)
Gardiner, Barry
George, rh Bruce (Walsall S)
Gerrard, Neil
Gilroy, Linda
Godsiff, Roger
Goggins, Paul
Griffiths, Jane (Reading E)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Grogan, John
Hain, rh Peter
Hall, Mike (Weaver Vale)
Hall, Patrick (Bedford)
Hamilton, David (Midlothian)
Hanson, David
Harris, Tom (Glasgow Cathcart)
Havard, Dai (Merthyr Tydfil & Rhymney)
Healey, John
Henderson, Ivan (Harwich)
Hendrick, Mark
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, Keith (Streatham)
Hodge, Margaret
Hoey, Kate (Vauxhall)
Hoon, rh Geoffrey
Hope, Phil (Corby)
Hopkins, Kelvin
Howarth, rh Alan (Newport E)
Howarth, George (Knowsley N & Sefton E)
Howells, Dr. Kim
Hoyle, Lindsay
Hughes, Beverley (Stretford & Urmston)
Humble, Mrs Joan
Hutton, rh John
Ingram, rh Adam
Irranca-Davies, Huw
Jackson, Helen (Hillsborough)
Jamieson, David
Jenkins, Brian
Johnson, Alan (Hull W)
Johnson, Miss Melanie (Welwyn Hatfield)
Jones, Helen (Warrington N)
Jones, Jon Owen (Cardiff C)
Jones, Martyn (Clwyd S)
Jowell, rh Tessa
Joyce, Eric (Falkirk W)
Keen, Alan (Feltham)
Keen, Ann (Brentford)
Kelly, Ruth (Bolton W)
Kemp, Fraser
Kennedy, Jane (Wavertree)
Khabra, Piara S.
Kidney, David
Kilfoyle, Peter
King, Andy (Rugby)
King, Ms Oona (Bethnal Green & Bow)
Knight, Jim (S Dorset)
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, David
Lawrence, Mrs Jackie
Laxton, Bob (Derby N)
Lazarowicz, Mark
Lepper, David
Leslie, Christopher
Levitt, Tom (High Peak)
Lewis, Ivan (Bury S)
Liddell, rh Mrs Helen
Linton, Martin
Love, Andrew
Lucas, Ian (Wrexham)
Luke, Iain (Dundee E)
Lyons, John (Strathkelvin)
McAvoy, Thomas
McCabe, Stephen
McCartney, rh Ian
McDonagh, Siobhain
MacDonald, Calum
MacDougall, John
McFall, John
McGuire, Mrs Anne
McIsaac, Shona
McKechin, Ann
Mackinlay, Andrew
McNulty, Tony
MacShane, Denis
Mactaggart, Fiona
McWilliam, John
Mahmood, Khalid
Mahon, Mrs Alice
Mallaber, Judy
Mandelson, rh Peter
Mann, John (Bassetlaw)
Marris, Rob (Wolverh'ton SW)
Marsden, Gordon (Blackpool S)
Marshall, David (Glasgow Shettleston)
Marshall, Jim (Leicester S)
Martlew, Eric
Merron, Gillian
Michael, rh Alun
Milburn, rh Alan
Miliband, David
Miller, Andrew
Mitchell, Austin (Gt Grimsby)
Moffatt, Laura
Mole, Chris
Morgan, Julie
Morley, Elliot
Morris, rh Estelle
Mountford, Kali
Mudie, George
Mullin, Chris
Munn, Ms Meg
Murphy, Denis (Wansbeck)
Murphy, Jim (Eastwood)
Murphy, rh Paul (Torfaen)
Naysmith, Dr. Doug
Norris, Dan (Wansdyke)
O'Brien, Mike (N Warks)
Olner, Bill
O'Neill, Martin
Organ, Diana
Osborne, Sandra (Ayr)
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Perham, Linda
Picking, Anne
Pickthall, Colin
Pike, Peter (Burnley)
Plaskitt, James
Pollard, Kerry
Pond, Chris (Gravesham)
Pope, Greg (Hyndburn)
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Ken
Purnell, James
Quin, rh Joyce
Quinn, Lawrie
Rammell, Bill
Rapson, Syd (Portsmouth N)
Raynsford, rh Nick
Robertson, John (Glasgow Anniesland)
Robinson, Geoffrey (Coventry NW)
Roche, Mrs Barbara
Rooney, Terry
Ross, Ernie (Dundee W)
Roy, Frank (Motherwell)
Ruane, Chris
Ruddock, Joan
Russell, Ms Christine (City of Chester)
Ryan, Joan (Enfield N)
Salter, Martin
Sarwar, Mohammad
Savidge, Malcolm
Sawford, Phil
Sedgemore, Brian
Shaw, Jonathan
Sheerman, Barry
Sheridan, Jim
Shipley, Ms Debra
Short, rh Clare
Singh, Marsha
Skinner, Dennis
Smith, rh Andrew (Oxford E)
Smith, Angela (Basildon)
Smith, Jacqui (Redditch)
Smith, John (Glamorgan)
Soley, Clive
Southworth, Helen
Spellar, rh John
Squire, Rachel
Starkey, Dr. Phyllis
Steinberg, Gerry
Stevenson, George
Stewart, David (Inverness E & Lochaber)
Stewart, Ian (Eccles)
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Gerry
Tami, Mark (Alyn)
Taylor, rh Ann (Dewsbury)
Taylor, Dari (Stockton S)
Taylor, David (NW Leics)
Thomas, Gareth (Clwyd W)
Thomas, Gareth (Harrow W)
Timms, Stephen
Tipping, Paddy
Touhig, Don (Islwyn)
Trickett, Jon
Truswell, Paul
Turner, Dennis (Wolverh'ton SE)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Tynan, Bill (Hamilton S)
Vaz, Keith (Leicester E)
Vis, Dr. Rudi
Walley, Ms Joan
Ward, Claire
Wareing, Robert N.
Watson, Tom (W Bromwich E)
Watts, David
White, Brian
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Alan (Swansea W)
Williams, Betty (Conwy)
Wills, Michael
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wood, Mike (Batley)
Woodward, Shaun
Woolas, Phil
Worthington, Tony
Wray, James (Glasgow Baillieston)
Wright, Anthony D. (Gt Yarmouth)
Wright, David (Telford)
Wright, Tony (Cannock)

Tellers for the Ayes:

Vernon Coaker and
Margaret Moran


Ainsworth, Peter (E Surrey)
Allan, Richard
Amess, David
Ancram, rh Michael
Arbuthnot, rh James
Atkinson, David (Bour'mth E)
Atkinson, Peter (Hexham)
Bacon, Richard
Baker, Norman
Barker, Gregory
Baron, John (Billericay)
Barrett, John
Beggs, Roy (E Antrim)
Beith, rh A. J.
Bellingham, Henry
Bercow, John
Blunt, Crispin
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, rh Virginia (SW Surrey)
Brady, Graham
Brake, Tom (Carshalton)
Brazier, Julian
Breed, Colin
Brooke, Mrs Annette L.
Bruce, Malcolm
Burnett, John
Burns, Simon
Burstow, Paul
Burt, Alistair
Butterfill, John
Cable, Dr. Vincent
Calton, Mrs Patsy
Cameron, David
Carmichael, Alistair
Cash, William
Chapman, Sir Sydney (Chipping Barnet)
Chidgey, David
Chope, Christopher
Clappison, James
Clarke, rh Kenneth (Rushcliffe)
Clifton-Brown, Geoffrey
Collins, Tim
Corbyn, Jeremy
Cormack, Sir Patrick
Cotter, Brian
Curry, rh David
Davey, Edward (Kingston)
Davies, Quentin (Grantham & Stamford)
Davis, rh David (Haltemprice & Howden)
Djanogly, Jonathan
Doughty, Sue
Duncan, Peter (Galloway)
Evans, Nigel
Fabricant, Michael
Fallon, Michael
Field, Mark (Cities of London & Westminster)
Flight, Howard
Flook, Adrian
Forth, rh Eric
Foster, Don (Bath)
Fox, Dr. Liam
Francois, Mark
Gale, Roger (N Thanet)
Garnier, Edward
Gibb, Nick (Bognor Regis)
Gidley, Sandra
Goodman, Paul
Gray, James (N Wilts)
Grayling, Chris
Green, Damian (Ashford)
Green, Matthew (Ludlow)
Greenway, John
Grieve, Dominic
Gummer, rh John
Hammond, Philip
Harris, Dr. Evan (Oxford W & Abingdon)
Harvey, Nick
Hawkins, Nick
Hayes, John (S Holland)
Heald, Oliver
Heath, David
Heathcoat-Amory, rh David
Hendry, Charles
Hermon, Lady
Hoban, Mark (Fareham)
Hogg, rh Douglas
Holmes, Paul
Horam, John (Orpington)
Howard, rh Michael
Howarth, Gerald (Aldershot)
Hughes, Simon (Southwark N)
Hurst, Alan (Braintree)
Jack, rh Michael
Jackson, Glenda (Hampstead & Highgate)
Jackson, Robert (Wantage)
Jenkin, Bernard
Jones, Nigel (Cheltenham)
Keetch, Paul
Kennedy, rh Charles (Ross Skye & Inverness)
Key, Robert (Salisbury)
Kirkbride, Miss Julie
Kirkwood, Sir Archy
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lamb, Norman
Lansley, Andrew
Laws, David (Yeovil)
Letwin, rh Oliver
Liddell-Grainger, Ian
Lidington, David
Lilley, rh Peter
Llwyd, Elfyn
Loughton, Tim
Luff, Peter (M-Worcs)
McIntosh, Miss Anne
Mackay, rh Andrew
Maclean, rh David
McLoughlin, Patrick
Malins, Humfrey
Maples, John
Marsden, Paul (Shrewsbury & Atcham)
Maude, rh Francis
Mawhinney, rh Sir Brian
May, Mrs Theresa
Mitchell, Andrew (Sutton Coldfield)
Moore, Michael
Moss, Malcolm
Murrison, Dr. Andrew
Oaten, Mark (Winchester)
O'Brien, Stephen (Eddisbury)
Öpik, Lembit
Osborne, George (Tatton)
Ottaway, Richard
Page, Richard
Paice, James
Paterson, Owen
Pickles, Eric
Price, Adam (E Carmarthen & Dinefwr)
Prisk, Mark (Hertford)
Pugh, Dr. John
Randall, John
Redwood, rh John
Reid, Alan (Argyll & Bute)
Rendel, David
Robathan, Andrew
Robertson, Hugh (Faversham & M-Kent)
Robertson, Laurence (Tewk'b'ry)
Roe, Mrs Marion
Rosindell, Andrew
Russell, Bob (Colchester)
Sanders, Adrian
Sayeed, Jonathan
Selous, Andrew
Shephard, rh Mrs Gillian
Shepherd, Richard
Simmonds, Mark
Simpson, Keith (M-Norfolk)
Smyth, Rev. Martin (Belfast S)
Soames, Nicholas
Spelman, Mrs Caroline
Spicer, Sir Michael
Spring, Richard
Stanley, rh Sir John
Steen, Anthony
Streeter, Gary
Stunell, Andrew
Syms, Robert
Tapsell, Sir Peter
Taylor, Ian (Esher)
Taylor, John (Solihull)
Taylor, Matthew (Truro)
Taylor, Dr. Richard (Wyre F)
Taylor, Sir Teddy
Teather, Sarah
Thomas, Simon (Ceredigion)
Thurso, John
Tonge, Dr. Jenny
Tredinnick, David
Trend, Michael
Turner, Andrew (Isle of Wight)
Tyler, Paul (N Cornwall)
Tyrie, Andrew
Viggers, Peter
Walter, Robert
Waterson, Nigel
Webb, Steve (Northavon)
Whittingdale, John
Widdecombe, rh Miss Ann
Wiggin, Bill
Wilkinson, John
Willetts, David
Williams, Hywel (Caernarfon)
Williams, Roger (Brecon)
Willis, Phil
Wilshire, David
Winterton, Ann (Congleton)
Winterton, Sir Nicholas (Macclesfield)
Yeo, Tim (S Suffolk)
Young, rh Sir George
Younger-Ross, Richard

Tellers for the Noes:

Angela Watkinson and
Sir Robert Smith

Question accordingly agreed to.

18 Nov 2003 : Column 723

mr. speaker then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

Lords amendment No. 115 disagreed to.

18 Nov 2003 : Column 724

Government amendment (a) to words restored agreed to.

Lords amendments Nos. 116 to 124 disagreed to.

Government amendment (a) to words restored by Lords amendment No. 124 agreed to.

Lords amendments Nos. 125 and 126 disagreed to.

Government amendment (a) to words restored by Lords amendment No. 126 agreed to.

Lords amendments Nos. 127 to 129 disagreed to.

Government amendments (a) to (e) to words restored by Lords amendment No. 129 agreed to.

Lords amendment No. 130 disagreed to.

Government amendments (a) to (d) to words restored by Lords amendment No. 130 agreed to.

Lords amendments Nos. 131 and 132 disagreed to.

Government amendment (a) to words restored agreed to.

Lords amendments Nos. 133 to 137 agreed to.

Clause 146

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