Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 20-39)

Thursday 22 May 2003


Q20  Vera Baird: Let us move on to 84, there is no de minimis provision in (b), is there? All it says is that it might be viewed with disapproval by a reasonable person, that is a test that allows anything in, does it not? It is in fact a subjective test.

Lord Falconer of Thoroton: "A reasonable person" is not a subjective test.

Q21  Vera Baird: It is a subjective evaluation of what a reasonable person would accept. I might think it is perfectly reasonable to characterise somebody as a thug.

Lord Falconer of Thoroton: It is an objective test which a judge has to apply. If you regard what judges do when applying an objective test in his objective assessment then your characterisation is correct.

Q22  Vera Baird: You know very well when one considers the concept of "a reasonable person" one gets into all manner of difficulties about the way the person has been brought up and what might be reasonable for a person who was brought up in a culture who thinks violence is all right, you get into all sorts of difficulty about that. It does have highly suggestive elements in it.

Lord Falconer of Thoroton: Judges are well equipped to deal with that sort of definitional issue and it is right that the judges should.

Q23  Vera Baird: Can you say that you are content that no material under 82 will go in which will be an assault upon Article 8 rights?

Lord Falconer of Thoroton: Yes, I can.

Q24  Vera Baird: The reason it would not be in Article 8 is because it went beyond relevance.

Lord Falconer of Thoroton: I accept the Article applies. My view is that properly applied these provisions do not infringe the convention.

Q25  Chairman: Could I ask at this point, Minister, whether you are content that as things stand at the moment the evidence of a defendant's or a witness's adultery, which would have nothing to do with the case in point, would probably, we would say certainly, not be admissible now? Would you not agree it certainly would be admissible when the Bill comes in?

Lord Falconer of Thoroton: No. Your premise was, assume it had nothing to do with the case, then I find it very difficult to envisage circumstances in which it would go in under the present provision.

Q26  Chairman: Why was it drafted so widely?

Lord Falconer of Thoroton: If I am right in my analysis it would not go in, the Bill would make sure that things like that did not go in. If the parties had agreed for some reason that the adultery should go in then it would go in under the heading of "agreed". If you could not understand the case but for the adultery, or it was said to be relevant to the motive of whatever crime had been committed you would be happy it should go in there, but otherwise I cannot see circumstances in which it would go in.

Chairman: I am not sure the Committee is as sanguine about this as you.

Q27  Mr Chidgey: Minister, I really wanted to get some clarification, if I may, on elements of clause 85. Dealing with past convictions—

Lord Falconer of Thoroton: Yes.

Q28  Mr Chidgey: I appreciate that the clause does protect the defendant where there is a previous conviction for similar offence. I wonder if you can clarify for me what might currently be called spent convictions and where they will be taken into account as permissible? Is it the case that spent convictions would be admissible as evidence of character?

Lord Falconer of Thoroton: In order for the previous conviction, including a spent conviction, to go in it has to fit within one of the headings in 85(1). If the conviction is relevant to the case before the court or if it is a similar sort the fact that it is spent has no bearing on 85(1). It could well have a bearing if the court was considering whether or not to exercise its discretion to exclude that evidence. For example, if it was a very old conviction of a similar sort with very little probative value then that would be a fact that would strongly count in favour of excluding its admission in the case.

Q29  Mr Chidgey: The decision to exclude would be whose in this case?

Lord Falconer of Thoroton: The judge's.

Q30  Mr Chidgey: I ask this question because it is a fact, is it not, that one third of the male population of this country have a criminal conviction, usually acquired in their early years, teens and their twenties, and they usually grow up and do not re-offend. My concern is that does remain on the record for all intents and purposes and when those convictions are spent they are part of their past and no longer deemed to be evidence of them having a bad character. However, is it not the case that under this Bill we could find a situation where those with past convictions, which apply to a great deal of people in this country, could be brought forward as evidence of bad character, whereas there is evidence of a previous lifestyle which is no longer relevant?

Lord Falconer of Thoroton: Yes, it would be open to the prosecution to apply to put them in and the judge upon the application by the defence to exclude them. Suppose I am charged with a serious fraud in my 30s or 40s and when I was 16 I stole a car or committed various public order offences—

Q31  Mr Chidgey: That is more likely, yes I agree.

Lord Falconer of Thoroton: something like that, the judge could conclude that has very little probative value in relation to the fraud for which the defendant is now charged, it is prejudicial to put it in therefore the judge will exclude it. What the right course in an individual case is is very difficult to prescribe in a statute, therefore the right thing to do is to let the judge decide on an individual case-by-case basis.

Q32  Mr Chidgey: Presumably these submissions would become part of the evidence in court so it could well be the case that somebody in their 40s is charged with an offence and perhaps, in my case, in due course acquitted but nevertheless the evidence before the court would be what happened to them in a much earlier part of their life, because under the usual rules of a spent conviction it would not generally be public knowledge, which could place somebody in an extremely embarrassing position socially, in their business and their work when these past records of a misdemeanour become current public knowledge?

Lord Falconer of Thoroton: I recognise that

Q33  Mr Chidgey: That is surely not a reasonable way for the law to behave?

Lord Falconer of Thoroton: One of the problems about all court proceedings is (a) they must be conducted in public and (b) they will frequently involve very unfair and wrong assertions being made about defendants who are ultimately acquitted. They involve even now, currently, and I do not complain about this, spent convictions being potentially admissible in evidence against defendants who are then acquitted. A balance has to be struck between ensuring that the best available evidence is there and the protection of the defendant. We think we have the balance right.

Q34  Mr Chidgey: I find I cannot agree with you there, Minister. It seems rather strange in the current situation, because once a conviction is spent it no longer has to be declared when seeking employment and suddenly that is thrown out of the window and your past records that have previously not been available to the public become public property, which seems to change the shifting of balance.

Lord Falconer of Thoroton: The Rehabilitation of Offenders Act has always excluded court proceedings in relation to the spending of convictions. I can envisage cases, for example a series of convictions for domestic violence where no custodial sentence was imposed which gets spent quickly and then there is another series of allegations by way of indictment in relation to domestic violence, should those spent conviction be admitted? You are saying they should always be excluded because they are spent.

Q35  Mr Chidgey: I am not saying that.

Lord Falconer of Thoroton: You are saying that in effect because otherwise there has to be a discretion somewhere.

Q36  Mr Chidgey: I am pointing out, if I might reiterate the point, one third of the male population of this country have acquired a criminal conviction, usually in their youth, and as they move on they grown up and become good citizens. We are throwing the emphasis way back to 20 or 30 years previously as evidence that you are a bad character. That is my concern.

Lord Falconer of Thoroton: I am saying something different. I am saying it can go in and I am saying that the judge has to decide. I misunderstood your question as saying it should never go in if it is spent. If there is to be discretion then somebody has to exercise that discretion.

Mr Chidgey: I am not convinced.

Q37  Vera Baird: In clause 85(1) what is the purpose of (d)?

Lord Falconer of Thoroton: That you avoid long, legal debates initially about whether or not it is relevant. If it is the same then that is normally enough to satisfy that it should go in. If the defence object then under 85(3) the role of the judge would be to balance its relevance against its prejudicial effect. If it had no relevance then plainly it would not be admitted because the objection under 85(3) would be bound to succeed because the prejudicial effect, no matter how minor, would be bound to over-top the fact that it had no relevance.

Q38  Vera Baird: Relevance to what?

Lord Falconer of Thoroton: Issues in the proceedings.

Q39  Vera Baird: That is covered by 85(e).

Lord Falconer of Thoroton: We are making the presumption that it is relevant by having (d). You do not need to have a debate about whether it fits within (e) if it fits within (d).

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