Examination of Witnesses (Questions 40-59)
Thursday 22 May 2003
LORD FALCONER
OF THOROTON
Q40 Vera Baird: The
provision in (e) sets out that you can admit a conviction if it
is relevant to an important matter in issue between the defence
and the prosecution.
Lord Falconer of Thoroton:
Yes.
Q41 Vera Baird: That
is an okay criteria, that is the one that you want to rely on
all of the time. Granted that there is (e), which allows it in
if it is relevant at all what is the purpose of (d)?
Lord Falconer of Thoroton:
It avoids the need for a debate about whether it fits within (e)
and it automatically goes in under (d). If there is an issue about
it that is dealt with under 85(3). It reduces the complexity of
the process in court.
Q42 Vera Baird: If
it is relevant it will go in under (e). Why would it go in if
it was not relevant?
Lord Falconer of Thoroton:
You do not need to debate the issue, there is a presumption that
it is relevant if it comes under (d).
Q43 Vera Baird: If
somebody objects under (d) what is the test that is applied?
Lord Falconer of Thoroton:
85(3). Balance relevance against prejudice effectively.
Q44 Vera Baird: That
is exactly what you have to do under 85(1)(e), in that provision
there is a need for a judge to decide whether it goes in.
Lord Falconer of Thoroton:
In a sense there is no need to look further and see whether it
is the same or similar, it goes in under 85(1)(d). This reduces
the scope for argument, but if there is an issue about it the
defendant can raise it under 85(3).
Q45 Vera Baird: 85(1)(e)
says that it goes in if it is relevant and there can be a debate
about that. Relevance in that category includes relevance to the
propensity.
Lord Falconer of Thoroton:
This is no criticism, obviously, but lawyers debate relevance
quite a lot. Is it worthwhile putting in a heading where that
debate is going to take place, when if there is in no real issue
about it then it will just go in under 85(1)(d).
Q46 Vera Baird: When
you say "no issue about it" it will go in because all
parties to the proceedings can agree that it goes in under 85(1)(a).
Lord Falconer of Thoroton:
I rather envisaged 85(1)(a) is rather different. Agreement on
the one hand is different from not objecting on the other.
Q47 Vera Baird: If,
as you suggested, there is no objection then it implies there
is an agreement. If there is an issue about its relevance it can
be done under (e). There is no purposes to (d), is there, except
to put them in as a matter of course?
Lord Falconer of Thoroton:
They do not go in as a matter of course because 85(3) provides
a basis for them to be excluded. The reason why I am saying that
is because 85(1)(d) sends the signal, if it is the same or similar
it normally goes in, but 85(3) is still there, and there the balance
between relevance and prejudice can be debated. It makes it simpler
and more straightforward and it avoids unnecessary legal debate.
Q48 Vera Baird: Even
as you describe an application under 85(1)(d) to put them in as
a matter of course and indicate, as you do, that will trigger
the judicial test—
Lord Falconer of Thoroton:
If the defendant raised it.
Q49 Vera Baird: —you
then talk about the issue of relevance being the point, relevance
is the point under (e), so are you really saying that (d) and
(e) are the same?
Lord Falconer of Thoroton:
I am saying that (d) requires no consideration other than seeing
whether it is the same or similar before it goes in. The reason
we have done that is we want to send the signal that normally
it would go in. That reduces the debate in court, because lawyers
legitimately argue about relevance a lot in court, and if the
defendant wants to raise it he raises it under 85(3).
Q50 Vera Baird: The
contrary effect is going to occur from (d), is it not? If you
put before a judge the criteria in (a), which we agree is an appropriate
one—
Lord Falconer of Thoroton:
Agreed.
Q51 Vera Baird: —should
a previous conviction go in if it is relevant, that is the issue
we need to look at, that is where the judge will exercise his
discretion under (3), that is where all of arguments you are applying
to (e) and (d) will be heard, I think, what will happen is that
since you put them in as a matter of course under (d), relevant
or irrelevant, that will set a benchmark for a judge who will
say: "Since Parliament says they are admissible, relevant
or irrelevant under (d) on what basis can I exclude them?"
Lord Falconer of Thoroton:
You have to balance relevance against prejudicial effect.
Q52 Vera Baird: You
do that under (e). Since you have (d) as well which if they are
not relevant on the face of (d), and (d) says nothing about relevance,
it says they go in because they are evidence of a conviction for
an offence of the same description or the same category. No relevance
to probative value, nothing. Parliament said they go in even though
they are irrelevant in (d) what ground has the judge got to exclude
them?
Lord Falconer of Thoroton:
Everyone has made it clear throughout and everyone agrees that
the effect of 85(3) is that you balance probative value against
prejudice, that is the process that the judge will go through
under 85(3). The fact that the focus is there rather than a debate
under 85(1)(d) does not remove protections from the defendant.
Q53 Vera Baird: May
I press you on that point one more step to say, you will be well
aware that the judiciary do not regard it in the way that you
described it now?
Lord Falconer of Thoroton:
I am not aware of that.
Q54 Vera Baird: The
judiciary by and large—I have not done a survey but I have
talked to a large number of them, including some senior ones—their
views are that that legislation requires previous convictions
to go in just if they are similar and they will not be able to
exclude them because Parliament has said they go in if they are
similar. All of the tests that 85(3) permit them to use are admissible
in truth to the other criteria and not to (d), (d) is set aside,
put them in any way, and they will feel there is no way in which
to exercise their discretion because Parliament said in they go
every time. In they go.
Lord Falconer of Thoroton:
I am surprised to hear that, first of all because it is explicit
in the terms of the Bill that 85(3) does apply to (d), and that
is in contradistinction to other sub paragraphs of 85(1) to which
it does not apply. Secondly, because the wording used in 85(3)
has been explicitly used so there is a balance between prejudice
and probative value. Thirdly, because I believe, although I was
not there, but you were, that in the committee stage of the Bill
in the Commons it was made explicit by the much missed Mr Hilary
Benn that that was the way it was going to be approached. Do you
agree with all three points?
Q55 Vera Baird: Hilary
Benn is certainly much missed, I agree with you completely. He
said what you said, which is despite the fact that the provision
says put them in if they are similar he said that the judiciary
will nonetheless exercise discretion. There is no discretion to
exercise, Minister.
Lord Falconer of Thoroton:
I express exasperation at this line of questioning because 85(3)
contains an explicit discretion, it is a discretion that is expressly
applied to (d), it is not expressly applied to all of the other
ones. Everyone agrees that the wording used in 85(3) is wording
which is normally in the past been construed by a judge as meaning
prejudice again probative value. It is jolly difficult to deal
with your argument on the basis of that this is what I have been
told by . . .
Q56 Vera Baird: I
accept that. You must take it from me.
Lord Falconer of Thoroton:
I am not denying they have said that.
Q57 Vera Baird: You
must take it that is the way I see it, nonetheless I have had
those discussions.
Lord Falconer of Thoroton:
Is it not significant that there is this discretion there? Is
it not significant that it is expressly applied?
Q58 Vera Baird: There
is no discretion available, that is a very false juxtaposition.
Lord Falconer of Thoroton:
It is not for me to ask questions but I wonder then if there is
any effect in (3) being expressly applied to (d)?
Q59 Vera Baird: There
is no effect in (3) being expressly applied.
Lord Falconer of Thoroton:
It is your position that 85(3) in relation to (d) has no meaning.
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