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Mr. Grieve: I am bound to say, listening to the illustration that the Minister has had to give, that if such a system was in place for stealing luggage, that would plainly be similar fact evidence. That would be admissible under the rules that existed before the 2003 Act came into force.
Paul Goggins: That may be true, but the fact of the matter was that the evidence was not admissible in that case, which is a real one, because the previous rules were unclear and complex and did not make sufficient evidence admissible. That is why we are changing the presumption in favour of inclusion, rather than exclusion.
Another example is that of a man in Cheshire arrested in possession of property from a burglary that happened 100 m away from where he lived. He claimed in an interview that he had purchased the property and was convicted only of handing stolen goods. He had multiple previous convictions for burglary and handling offences; none of those were admissible to the jury as evidence of bad character.
Perhaps most worrying of all was a case cited in our debates on the Criminal Justice Bill in April 2003 about a doctor accused of raping one of his patients. The jury was not allowed to know that he had previously been convicted of indecently assaulting six patients and acquitted of raping another. The patient who testified against him was unable to explain that, because of publicity connected to his assault charges on other women, her suspicions were fuelled that she had been raped by him without her knowing it. Her child was subsequently found through a DNA test to have been fathered by the doctor. He was cleared by the jury, and the patient felt scandalised that she had been unable to refer to the previous conviction and was made to sound less credible when giving her offence.
Under section 101, such evidence would be admissible as important explanatory evidence relevant to an important matter between the defendant and prosecution. This was clearly a case in which a victim of a most heinous and serious crime was not able to have evidence of the bad character of that particular doctor—information that would have helped the jury deal with the charges—brought to court.
In conjunction with the other general powers created by the 2003 Act, we are ensuring that where there is evidence of bad character, we shift the balance in favour of including such evidence, where the judge is satisfied that it is fair to do so, instead of continuing with the current system which tends to exclude that evidence. The balance of the criminal justice system will be tipped far more in favour of the victims of crime, which is a central aim of the Home Office and the Government.
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Mr. Grieve: It is always pleasant to listen to the Minister in debate and to hear his explanations, but the situation that we find ourselves in this afternoon is frankly lamentable. We have a report that was published at only 11 o'clock this morning, which raises serious disquiet about the order presented to the
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Committee for consideration. It suggests that the order is not compatible with the Human Rights Act 1998 and the European convention on human rights.
We also have a Minister's letter in reply that neither I nor at least one other member of the Committee had a chance to see until half-past 2, which I am sure is no one's fault, but it is a mistake that usually slips into the system. A brief look at the letter shows pretty clearly and at the outset that it has succeeded in providing only the most partial response to the queries raised by the Joint Committee on Human Rights. In fairness, I have had the order on my desk for several weeks, and have therefore had ample time to consider it. When I first looked at it, I could see for myself that it raised serious problems.
Let me first set the scene. As the Minister will remember from the 2003 Act, I, on behalf of the Conservative Opposition, confirmed that we accepted that change to the original rules on evidence of bad character was required. I do not depart from that. The question was how it could be controlled so as to avoid irrelevant material, which was merely prejudicial and could not be probative, going in front of a jury. The Government acknowledged that merely to legislate for a free-for-all whereby everybody's previous convictions automatically went in would be wrong. Mercifully, and despite this order, a judicial safeguard to exclude certain evidence remains.
One matter that exercised the Minister, and ultimately the Home Secretary in particular when we came to legislate, was the desire for propensity to be a key factor in determining admissibility—if it was clear that there was a pattern showing propensity, it would be a compelling argument. The desire was to reinforce that in statute to ensure that it compelled or encouraged judges to admit such material while still leaving the residual power and right to exclude it, if it would be so unjust.
So, propensity has become one of the key issues. We knew when we passed the Act that the Home Secretary would return to the House with prescribed categories of offence. We also knew—I accept this—that in his categories he would not necessarily just compare one offence with another, but would want to widen the scope. All those things are perfectly understandable.
However, it is regrettable—I repeat this—that we are considering two completely different categories in one instrument. It is therefore inevitable, although I suspect this was done quite deliberately, that the Committee's power to argue against one category, which it believes to be wrong, will necessarily be fettered by its belief that the other is perhaps right. From a public relations point of view, which this Government are so adept at considering, any attempt, for instance, to oppose a category that concerns sexual offences is likely to be highly emotive, and therefore could be used by the Government as a stick with which to beat people who dare stand in their way. That, too, is regrettable. There should be two separate orders—one for theft and one for sexual offences. If the Government do this again, I assure them that I shall make an even bigger noise about it and express my irritation in stronger terms.
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Let us consider the two categories. The first category —sexual offences—is very wide. Notwithstanding that, there is an inherent logic behind it because it concerns sexual offences against persons under the age of 16. It may therefore follow logically that if someone has a propensity to commit an offence of a sexual nature against someone under the age of 16, that establishes a logical, common-sense link between the various offences.
I want to make one further point, which was highlighted by the reply given by Baroness Scotland of Asthal on recidivism rates in the sexual offences category and by the Joint Committee's examination of the same matter. Baroness Scotland was unable to provide any real statistical categorisation on recidivism rates in the sexual offences category, and the Joint Committee's understanding of the matter was that the recidivism rates ranged from a tiny percentage to a massive percentage, depending on the different types of offence. However, I accept in broad terms that the judiciary will probably be best placed to exercise its discretion in such matters and will exclude such material as is irrelevant.
It is worth pointing out, however, that some of those offences may have very tenuous links indeed. For example, an offence under section 5 of the Sexual Offences Act 1956—intercourse with a person under the age of 16—might have been committed by someone only just over the age of 16 and therefore have been considered a very slight matter. If, 30 years later, that person was charged with a similar offence—in their mid-40s or mid-50s—it might be thought that the link between the two in terms of showing propensity was almost non-existent. I highlight that as an example, but I think that ultimately the judges will be able to sort out such matters.
On the theft category, I am mystified by the Government's logic. Theft is a dishonesty offence; it is about taking someone else's property. If the common link is dishonesty, the first thing that one immediately notices is that there are a large number of offences that the Government have not included in this category. For instance, they have not included obtaining property by deception. If ever there was an offence of dishonesty, that is it. Obtaining property by deception often amounts to little more than theft, but it has not been included. Fraud offences are also not in the category, which is very odd.
That being the case, I am left with the impression that dishonesty is not the common link that the Government are trying to establish. Therefore, we have to try to see what other links there might be. Here it starts to become very strange. As the Joint Committee on Human Rights highlighted, it is possible to commit burglary without taking anybody's property. It is also, for that matter, possible to take a motor vehicle or other conveyance without authority but without any intention of permanently depriving somebody of that conveyance, if one drives it from one end of the street to the other and dumps it.
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There is an inherent lack of logic here, and I have tried to address it now that I understand it. I apologise to the Minister that I did not follow it entirely when I read the letter briefly. Baroness Scotland's reply simply says:
''So far as the theft category is concerned, an analysis has been done of 19,689 individuals who had been convicted of an offence falling within the theft category and who were released from prison . . . 14,407 of that number were reconvicted of an offence within two years. 58.4 per cent. of those 14,407 were reconvicted of an offence falling within the same theft category. That shows a high rate of recidivism.''
It is abundantly clear from that that the Government have the statistics at their disposal, but they have not, although I am sure they could have done, provided a breakdown of the different types of offence so that we can see the number of people convicted of theft who had been previously convicted of burglary or aggravated motor vehicle taking or handling stolen goods. Without that information, we are completely in the dark as to whether the Government's broad contention is correct.
I find the Government's approach uniquely depressing. The way in which the material is presented shows the usual brand of the Home Secretary wanting to look tough, a lack of respect for human rights—which is becoming a hallmark of this Government, notwithstanding their having brought the Human Rights Act into operation—a lack of respect for civil liberties and, above all, a contempt for members of the Committee and Members of the House. It is a sorry picture.
I hope that the Minister can address some of my anxieties. I am grateful to him, as always, for the courteous way in which he presented the facts, but his brief is very thin. I have the impression that the Home Secretary has done an exercise off the top of his head as to what he thinks should be in the theft category, and has decided to present it. He felt thwarted that all the offences could not be referred to when the 2003 Act went through the Commons and he is trying to find a way round that. I regret the Government's approach in this case.
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