Joint Committee On Human Rights First Report



Thank you for your helpful letter of 6 December 2002 about the above Bill. The Committee is indeed considering whether to report on it to each House. The Committee has carried out an initial examination of this Bill, and is provisionally of the opinion that most of the provisions are compatible with human rights. However, members would be grateful for your comments on a number of points raised by its Legal Adviser. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

The Committee is concerned about the following matters:

    —  safeguards for property rights when a person is taken into custody (clause 6);

    —  the right to a fair trial in the context of admitting evidence of bad character and hearsay evidence (clauses 81 to 98);

    —  provisions about the disclosure of pre-sentence reports where the defendant is a child (clauses 143 and 144);

    —  a provision relating to the sharing of information when assessing risks posed by certain offenders (clause 262).

1. Property of people detained at police stations.

Clause 6 of the Bill would remove the requirement in section 54(1) of the Police and Criminal Evidence Act 1984 that a custody officer shall 'record or cause to be recorded everything which a person has with him' when he is arrested at a police station or brought to a police station following arrest, and the requirement in section 54(2) that such a record shall form part of the detainee's custody record. As section 54(3) provides that most such items can be seized and retained by the police, powers under section 54 engage the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter P1/1). Most items can be seized and retained by the police even if they are not evidence, and could not be used to injure anyone or to escape. The requirement for a record to be kept is a protection against unjustified interference with that right by the police or others. Why, in the absence of that protection, do you consider that adequate safeguards are in place to ensure that interference with rights under P1/1 by virtue of section 54 of the 1984 Act strikes a fair balance between the rights of the person in possession of property and the public interest, as required under P1/1.

2. Evidence of bad character and hearsay evidence.

Part 11 of the Bill would permit certain types of information, not currently ordinarily admitted as evidence in a criminal trial, to be put before the court. These are: (a) evidence of a defendant's 'bad character', which cannot currently be given unless the defendant has put his character in issue by either asserting that he is of good character; and (b) hearsay evidence, which cannot currently be given unless it falls within one of a number of exceptions, including but not limited to the use of earlier statements by people who are unable to give evidence. These provisions engage the right to a fair hearing under ECHR Article 6.1, and the particular right 'to examine or have examined witnesses against him ...' under ECHR Article 6.3(d). The European Court of Human Rights has accepted that hearsay evidence may be admitted in criminal proceedings in certain circumstances, but only if appropriate safeguards for the rights of the defence and the fairness of the proceedings are in place. The circumstances in which it might be appropriate to excuse a person from giving oral testimony of facts within his or her own knowledge include cases where evidence is provided by police informers[89] or witnesses who are abroad,[90] and those where oral evidence already given in foreign proceedings is used.[91] The essential point is that courts must be able to ensure that the trial is fair, taking account of the effect of evidence in the context of the case as a whole, and particularly that equality of arms and the rights of the defence are protected.

The European Commission on Human Rights, and courts in the United Kingdom, have decided, under the ECHR, the Human Rights Act 1998 and the Scotland Act 1998, that it is permissible under Article 6 to use as evidence statements previously made by people who do not give oral evidence at the trial,[92] as long as the court is able to ensure that fairness to the accused is maintained.[93] It appears to be permissible to rely entirely on hearsay evidence to establish a particular element of an offence (such as an intention to cause serious bodily harm on a charge of murder), without independent direct evidence to support the hearsay.[94] However, it might violate Article 6 if there were to be a conviction in a case where all elements of the offence were established entirely by hearsay evidence: the need for some supporting evidence to ground a conviction is one of the safeguards on which the European Court of Human Rights has insisted in other cases where there is an interference with the defendant's ability to examine witnesses against him.[95]

The effect of the Strasbourg case-law on Article 6(3)(d) has been summed up by one distinguished commentator as making it necessary for—

    ... the defence, in principle, to be allowed a chance to confront and question all persons on whose evidence the prosecution relies and whose evidence the defence contests; that this requirement is satisfied whether the opportunity was given in the course of a pre-trial instruction, or at the trial itself; that despite this general requirement, evidence from untested and even anonymous sources may be admissible in extraordinary circumstances—both where it is genuinely impossible for the evidence to be tested by the defence (e.g. because the witness is dead), and where allowing such a confrontation would put the witness in real danger (e.g. because the defendant's friends, having discovered his identity, would kill him); but that where such untested evidence is admitted, the conviction may not be based on this alone.[96]

(a) Evidence of bad character. The Bill would allow evidence of bad character to be admitted under different conditions, depending on whether it relates to the bad character of the defendant or of another person. Evidence of the defendant's bad character would be admissible if and only if—

    (a)  all parties agree to it being admissible; or

    (b)  the evidence is adduced by the defendant or given in answer to a question to him in cross-examination intended to elicit it; or

    (c)  it is important explanatory evidence; or

    (d)  it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged; or

    (e)  it is relevant to an important matter in issue between the defendant and the prosecution; or

    (f)  it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; or

    (g)  it is evidence to correct a false impression given by the defendant; or

    (h)  the defendant has made an attack on another person's character.[97]

These provisions appear to be intrinsically liable to lead to a violation of the right to a fair trial under ECHR Article 6.1. Of the grounds for admitting evidence of a defendant's bad character noted above, only (e) and (f) would require it to be relevant to an important issue in the case, while (c) would require his character to be either evidence without which other evidence would be difficult or impossible to understand properly, or to have substantial value for understanding the case as a whole.[98] This makes it clear that evidence of the defendant's bad character could be admitted under (a), (b), (d), (g) and (h) even if it had no direct relevance to any issue in the case. Admitting the evidence under (a) or (h) might be justifiable in human rights terms: under (a), the agreement of the defendant would tend to prevent the admission of the evidence being unfair; and under (h) the admission of the evidence might sometimes (though by no means always) tend to uphold fairness, in the sense of the equality of arms, between defence and prosecution. But under (b), (d), (g) and sometimes (h), the Bill obviously contemplates allowing evidence of bad character to be admitted even if it has no direct relevance to any issue in the case. The risk of undermining the fairness of a trial is heightened by the very wide definition given to 'evidence of bad character' in the Bill.

For example, suppose the prosecution in a burglary trial asks the defendant, under (b), whether he has ever committed adultery, or got a woman (other than his wife) pregnant, or driven recklessly, or told lies, or shown disrespect to a figure of authority. These are questions with no probative value, designed merely to elicit an answer tending 'to show that ... he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person.' They would be admissible under (b) unless the court decided that admitting the evidence 'would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it', an exception which seems to be intended to protect fair trial rights under ECHR Article 6, although it is doubtful, for reasons explained below, whether it would achieve that aim. Grounds (d), (g) and sometimes (h) would give rise to equivalent situations.

Normally, in assessing these matters a court would regard it as important to ask whether the prejudicial weight of the evidence exceeds its probative value. If a court applied this test to admissibility under Part 11 of the Bill, it might well be enough to secure a fair trial. But it is by no means certain that it would do so, in view of the courts willingness to defer to Parliament's judgment, expressed in statute, as to the appropriate balance.[99] As the Bill provides expressly that evidence of bad character, widely defined, may be admissible even if it has no probative value at all, it would be a bold judge who said that, notwithstanding the clear intention of Parliament, the resulting trial would be unfair, or who read down the wide terms of the Bill in reliance on section 3 of the Human Rights Act 1998. But giving effect to the intention of Parliament while complying with Article 6 would require the tribunal of fact to consider carefully the weight to be given to the evidence of bad character in the context of the issues in the case and the rest of the evidence. This would be possible, although not necessarily easy, for a judge, but a jury or lay magistrates would need a careful direction from the judge or their clerk about the assessment that would be required. Two problems immediately present themselves. First, the Bill does not require such a direction to be given, although it might be possible for courts to imply that requirement on the basis of sections 3 and 6 of the Human Rights Act 1998. Secondly, where a case is tried by a jury, it would be impossible to discover whether the direction had been followed, since juries are not allowed to give reasons for their verdicts.

There are two further reasons for thinking that the provisions may violate ECHR Article 6.1, both based on the principle of equality of arms as between the defendant and the prosecution. They come into play because the prosecution would be allowed to elicit or produce evidence of a defendant's bad character in circumstances which are in two respects wider than those in which a defendant could produce evidence of the bad character of other parties or witnesses.

First, a defendant could only produce evidence of a co-defendant's bad character on grounds (f) and (h) above (substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, or co-defendant having attacked defendant's character).[100] These grounds are narrower than those on which the prosecution could assert the defendant's bad character, putting the defendant at a potentially significant disadvantage compared with the prosecution.

Secondly, a defendant could only produce evidence of a non-defendant's bad character if—

    (a)  it is important explanatory evidence; or

    (b)  it has substantial probative value in relation to a matter which is both in issue in the proceedings and of substantial importance in the context of the case as a whole; or

    (c)  all parties to the proceedings agree to the evidence being admissible.[101]

This is a narrower range of grounds than the list of grounds for admitting evidence of the defendant's bad character. It is further narrowed by: (i) detailed provisions as to factors to be considered when deciding whether evidence has substantial probative value under (b), which do not apply to the equivalent assessment of probative value when the defendant's character is being traduced;[102] and (ii) the requirement for the leave of the court before a non-defendant's character, but not that of a defendant, can be attacked.[103]

In view of the unequal treatment of the admissibility of evidence of bad character in relation to (i) the defendant and (ii) other people, including prosecution witnesses, it seems quite possible that the provisions violate the principle of the equality of arms which forms an essential part of the right to a fair trial under ECHR Article 6.1.

For these reasons, the provisions on evidence of bad character, as drafted, may offer inadequate protection to the right to a fair hearing under ECHR Article 6.1. What factors have satisfied you that the provisions relating to evidence of bad character are capable of satisfying the requirements of ECHR Article 6.1?

(b) Hearsay evidence. The provisions relating to the admission of hearsay evidence would make it admissible:

    (a)  where a person who could have been an oral witness is unavailable for specified reasons;[104] or

    (b)  where the hearsay evidence takes the form of a document created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office, subject to certain conditions;[105] or

    (c)  where the hearsay evidence takes the form of a statement previously made by an oral witness which is inconsistent with the evidence being given orally by that witness,[106] or is a statement by any person who could have given oral evidence which is inconsistent with the witness's statement,[107] or is a previous statement by the witness which tends to rebut a suggestion that the witness's oral evidence is fabricated,[108] or is a statement in a document used by the witness to refresh his memory and on which he is cross-examined, and which is consequently received as evidence,[109] or meets certain other conditions,[110]

as well as under a number of common law exceptions to the hearsay rule, which are preserved.[111] In addition, a confession by one accused person would for the first time be admissible as evidence for a co-accused,[112] removing a possible source of a violation of the fair trial rights of the latter. When hearsay evidence is admitted, it would be capable of being evidence both as to the truth of the matters stated in it, and as to the credibility of a witness.[113]

The power to admit hearsay would be hedged about with a number of safeguards.[114] These are significant and worthwhile. Nevertheless, in one respect there seems to remain a danger that the provisions on hearsay may lead to a violation of the right to a fair trial under ECHR Article 6.1, taken with the particular right to examine witnesses under Article 6.3(d): the Bill expressly contemplates the possibility that a guilty verdict could be returned wholly on the basis of hearsay evidence, without any supporting or corroborating evidence.[115] On the basis of the Strasbourg case-law, the effect of which was outlined above, such a verdict could well violate Article 6.1 taken with Article 6.3(d). Why, in the light of this, do you consider that the provisions would be compatible with those rights?

3. Disclosure of pre-sentence reports, probation reports, and reports from youth offending teams, to offenders aged under 17.

Where a court obtains a pre-sentence report on an offender, clause 143(2) would lay down a general principle that copies of it should be given to the offender, his counsel or solicitor, and (usually[116]) to the prosecutor. However, the duty to give a copy to the offender would be subject to an exception under clause 143(3) where the offender is under 17 and is not represented by counsel or a solicitor. In this case, the copy need not be provided to the offender, but would have to be given to the offender's parent or guardian if present in court. Clause 144 makes similar provision in relation to reports to the court by probation officers or members of youth offending teams.

By effectively preventing the offender from making representations on his or her own behalf in relation to the reports, this seems to threaten to violate three rights:

    (a)  the right of the offender, as a person subject to a criminal charge, to a fair hearing under ECHR Article 6.1 and the Human Rights Act 1998, since Article 6.1 rights do not end on conviction but extend to the sentencing stage of the trial;

    (b)  the right of the offender as a child to express his views freely in all matters affecting him or her, to have those views given due weight in accordance with the child's age and maturity, and in particular to have the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, under Article 12.1 and 12.2 of the UN Convention on the Rights of the Child; and

    (c)  the right of the offender as a person to respect for his private life, under ECHR Article 8 and the Human Rights Act 1998, in circumstances where he or she is no longer in the care of a parent or guardian and/or does not want the parent or guardian to see the reports or to make representations to the court (although the Bill would not expressly give the parent or guardian a right to address the court in relation to the reports).

In the light of these considerations, the Committee seeks an explanation as to why you consider that clauses 143 and 144 of the Bill would be compatible with the above rights.

4. Exchange of information about certain sexual or violent offenders.

Clauses 205-208 of the Bill would allow an extended sentence to be passed on certain sexual and violent offenders[117] deemed to be liable to cause serious harm to the public if released. The task of assessing the danger is allocated to the 'responsible authority', that is, the chief officer of police for the area, the local probation board and the Minister of the Crown responsible for prisons, acting jointly.[118] For this purpose, they must co-operate with other bodies, which in turn are required to co-operate with the responsible authority to the extent compatible with their 'functions under any other enactment'.[119] It is not clear whether 'function' would include the performance by those public authorities of their duty to comply with Convention rights under the Human Rights Act 1998, section 6, and the Data Protection Act 1998. Co-operation for this purpose may include the exchange of information.[120] Some of this information could be highly sensitive, and might relate to third parties, as the bodies concerned include: youth offending teams; Ministers responsible for social security, child support, war pensions, employment and training; local housing authorities and social services authorities; registered social landlords; health authorities, strategic health authorities, primary care trusts, local health boards, and NHS trusts; and designated providers of electronic monitoring services.[121]

In order to ensure that there is no violation of the rights of any person (not only the offender) to respect for private life ECHR Article 8 and the Data Protection Act 1998, could it be made clear in clause 262 of the Bill that the clause would not require the bodies to co-operate where doing so would be incompatible with their duties towards defendants and other people under the Human Rights Act 1998 and the Data Protection Act 1998?

5. Representations

Finally, the Committee would be grateful for a description of any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

The Committee would be grateful for a response to its questions as early as possible, and in any event no later than 7 January.

10 December 2002

89   Kostovski v. Netherlands (1989) 12 EHRR 434, Eur. Ct. H.R Back

90   X. v. Germany (1987) 10 EHRR 521, Eur. Commn. H.R Back

91   S. v. Germany (1983) 39 DR 43, Eur. Commn. H.R. See Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000, with First Annual Updating Supplement 2001), para. 11.253, p. 669 Back

92   Criminal Justice Act 1988, ss. 23-26 Back

93   Trivedi v. United Kingdom (1997) 89 DR 136, Eur. Commn. H.R.; Quinn v. United Kingdom, App. No. 23496/94 (Merits), 11 Dec. 1997, at para. 80 et seq.; R. v. Gokal [1997] 2 Cr. App. R. 266, C.A.; R. v. Thomas [1998] Crim. L.R. 887, C.A.; McKenna v. Her Majesty's Advocate 2000 SCCR 159, High Ct. of Justiciary Back

94   See Trivedi, above; Quinn, above; McKenna, above; Law Commission, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com. No. 245 (London: The Stationery Office, 1997) Back

95   E.g. Kostovski v. Netherlands (1990) 12 EHRR 434; Unterpertinger v. Austria (1991) 13 EHRR 175, Eur. Ct. H.R.; Delta v. France (1993) 16 EHRR 574, Eur. Ct. H.R.; Saidi v. France (1993) 17 EHRR 251, Eur. Ct. H.R.; Doorsen v. Netherlands (1996) 22 EHRR 330, Eur. Ct. H.R.; Van Mechelen v. Netherlands (1998) 25 EHRR 647 Back

96   Professor J. R. Spencer, 'The European Convention and the rules of criminal procedure and evidence in England', in University of Cambridge Centre for Public Law (ed.), The Human Rights Act and the Criminal Justice and Regulatory Process (Oxford: Hart Publishing, 1999), ch. 7 at p. 61. See also Lord Justice Buxton, 'The Convention and the English law of criminal evidence', in University of Cambridge Centre for Public Law (ed.), op. cit., ch. 6 at pp. 49-52 Back

97   Clause 84(1) Back

98   See clause 85 Back

99   Brown v. Stott [2001] 2 WLR 817, P.C., is a striking example of this tendency Back

100   Clause 84(1) Back

101   Clause 83(1) Back

102   Clause 83(3); cp. clause 84 Back

103   Clause 83(4) Back

104   Clause 100(1), (2) Back

105   Clause 101(1), (2), (4), (5) Back

106   Clause 103(1) Back

107   Clause 103(2) Back

108   Clause 104(2) Back

109   Clause 104(3) Back

110   Clauses 104(4)-(8), 105, 106 Back

111   Clause 102 Back

112   Clause 112, inserting a new s. 76A into the Police and Criminal Evidence Act 1984 Back

113   Clause 108 Back

114   See particularly clauses 98, 109, 110 Back

115   See particularly clause 109(1)(a) Back

116   See clause 143(4) Back

117   See clause 264 and Sch. 11 to the Bill Back

118   Clause 262(1), (2) Back

119   Clause 262(3) Back

120   Clause 262(4) Back

121   Clause 262(6) Back

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