Taken before the Joint Committee on Human Rights on Thursday 22 May 2003
Jean Corston, in the Chair Bowness, L.
Witnesses: LORD FALCONER OF THOROTON, a Member of the House of Lords, Minister of State, Home Office, examined.
Chairman: Welcome, Minister, to this meeting of the Joint Committee on Human Rights. It is a pleasure to have you here with us. It is obviously no surprise to you that the Joint Committee has expressed some concerns about the Criminal Justice Bill because, of course, we have now referred to it on a number of occasions in our reports, principally at the end of January. The range of issues about which we are concerned in terms of potential violation of human rights are known to you and are in the public domain. I think the one about which there was probably the most concern expressed was the admissibility of evidence of bad character, particularly focusing on the broad range of types of evidence that would be admissible and to what degree that is going to prove anything - I am trying not to use legal language - and to what degree it would prejudice any defendant.
Q1 Vera Baird: Minister, could we look at clause 82, which is the definition of "bad character": "Evidence which shows or tends to show that - (a) he has committed an offence [other than the one with which he is charged, and not including an offence in connection with the investigation of the offence of which he is charged]".
Lord Falconer of Thoroton: We have the Bill after the Committee but not after report, so we are looking at the same one.
Q2 Vera Baird: It has 4 March on the back.
Lord Falconer of Thoroton: Yes.
Q3 Vera Baird: Defining bad character: "He has committed an offence", not one connected with the one with which he is charged, or "he is 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". Our concern is that this might allow evidence that has little or probably in some cases no probative value to go in in connection with either the defendant or the witness. We are concerned that might interfere with Article 8 rights and threatens the defendant's right to a fair hearing. Do you think it is sufficiently, precisely couched to ensure that any relevant material is considered?
Lord Falconer of Thoroton: There are headings of the bad character evidence which are described by reference to relevance, and the most obvious one in relation to that is where it is agreed between the parties and there is no requirement specifically of relevance and the fair trial test does not apply to that. To use the word "relevance" is not strictly accurate to all of the headings. We think it is okay because, for example, if the parties have agreed that it should go in it cannot infringe the rights of the defendant. Where there are issues of relevance then the fair trial test applies.
Q4 Vera Baird: You are talking of the fair trial test, which is to be found in 85(3).
Lord Falconer of Thoroton: Yes.
Q5 Vera Baird: Which only applies to a limited number. Could we stick to 82, rather than coming to the categories of admissibility, looking at the breadth of the evidence of bad character that is possible to put in. Is there not a real danger that it is couched in such wide terms that it is going to impinge upon private life in a way that ought not to be happening in trials?
Lord Falconer of Thoroton: No. 82 is a definition of the bad character to which the provisions apply. If you are not within clause 82 then the ordinary law will apply as to whether the evidence goes in or not. There needs to be a definition first of all. You still have to get yourself within clause 85(1) and where relevant 85(5) before the evidence goes in. We think that is satisfactory protection.
Q6 Vera Baird: You think it is fine to cast 82 as wide as imaginable, it is very hard to think of anything that would not be admissible under 82?
Lord Falconer of Thoroton: If you do not cast it that wide then you might well end up in a situation where there was other evidence of bad character to which 85(3) would not apply. Let me give you an example of that, suppose you somehow excluded previous acquittals from the evidence that was defined as bad character evidence under clause 82. I know there is a school of thought that says exclude acquittals, if you excluded acquittals you might end up with a situation where evidence of a previous acquittal could go in without the protection of 85(3).
Q7 Vera Baird: Are you saying that the power to put it in exists in some other way?
Lord Falconer of Thoroton: It might be argued that is relevant. It could be argued this scheme does not apply and therefore it has to be looked at without reference to all of this.
Q8 Vera Baird: You are widening the definition of bad character as defined in clause 82, are you not?
Lord Falconer of Thoroton: We are increasing the circumstances in which bad character can go in in a trial. We are providing a coherent series of safeguards before it goes in. You are right to say that discretion does not apply to all of the categories under 85(1) but we believe those categories to which it does not apply do not require that protection.
Q9 Vera Baird: I do not want to get bogged down on this but the current situation is that what is admissible as bad character now is far narrower than will be admissible in 82. There is existing judicial discretion to exclude anything which would impact on the fairness of a trial now which this legislation will not affect. The net effect is this, you are widening the ambit of the definition of bad character and limiting the way a judge can exclude it.
Lord Falconer of Thoroton: I do not think that is a fair assessment of what we have done. The headings in respect of which bad character can go in are pretty similar, so acquittals can potentially go in, not the actual fact of the acquittal but the facts underlining the acquittal. What we are doing is in effect expanding each of those headings so that more will go in under those headings but we are providing a coherent series of safeguards to ensure that it is properly dealt with.
Q10 Vera Baird: I would have thought that 82(1)(b) was wider than anything that is available now, particularly against the defence?
Lord Falconer of Thoroton: Your questions are on a false premiss, you are looking at the definition of bad character in a vacuum by simply focusing on 82 and you are not asking yourself: "That is the definition of bad character, when does it go in?" The debate never gets off the ground if you say: "What could show bad character?" A whole range of things could show bad character. That is not the issue. The issue is when does that sort of evidence go into court. With respect simply to focus on clause 82 does not get you very far.
Q11 Vera Baird: You are wrong.
Lord Falconer of Thoroton: Sorry.
Q12 Vera Baird: You have widened the definition of bad character in 82, have you not? Bad character under 82(1)(b) now would be eligible to be considered against the criteria in 84 in a way that no judge would now consider admitting it.
Lord Falconer of Thoroton: No, I think you are absolutely wrong about 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".
Q13 Vera Baird: Yes.
Lord Falconer of Thoroton: Suppose the defendant's character goes in now under the 1898 Act because he has attacked a prosecution witness and the judge concludes that the defendant's character should then go in or there is an attack between defendants on their character and it goes in, evidence that the defendant has behaved in accordance with (b) would be admissible in those circumstances.
Q14 Vera Baird: I am afraid we are going to have to differ about that. He says: "It would not in my opinion be couched as widely". Have you read the report we did about this, setting out the possibilities for the kind of behaviour that could be put in there, which is not relevant and nothing to do with acquittal or what is available under the 1898 legislation, which is only being charged.
Lord Falconer of Thoroton: If I am a defendant and my character goes in the prosecution is entitled to question me about aspects of my bad character that go beyond convictions.
Q15 Vera Baird: Certainly, but not so wide as "Conduct that might be viewed with disapproval by a reasonable person", which opens it up way beyond criminal behaviour, it opens it up to prejudice by a jury against a defendant by putting in unpleasant facts which are nothing to with criminality but which may make the jury dislike him. That is the danger, is it not?
Lord Falconer of Thoroton: It is currently not restricted to criminality.
Q16 Vera Baird: No judge would allow in material which would simply be prejudicial in the ways that I have said, non-criminal prejudicial.
Lord Falconer of Thoroton: Character is currently indivisible. If bad character can be demonstrated by non-criminal acts it is potentially admissible. I am not saying that it would go in in every case. I feel I am drawn into a lawyers debate. My basic point ---
Q17 Vera Baird: It is very straightforward and common sense, it is not a lawyers debate.
Lord Falconer of Thoroton: Sorry.
Q18 Vera Baird: Do you accept this has been widened? I do not know if you do. It seems perfectly clear it has been widened. The next test is to look at ways in which it is admissible and if they have also been widened, which they have.
Lord Falconer of Thoroton: I accept that bad character evidence will go in more often. I do not accept what constitutes bad character evidence has necessarily been increased in its ambit.
Q19 Vera Baird: If you now want to depict an individual as a type of person by making allusions to the way he has behaved in the past of the kind of conduct that might be viewed with disapproval by a reasonable person Parliament said that you can as long as you can get through the hurdles in 84. No judge would permit that to happen, stereotyping an individual, unless it was probative and there is no requirement to be probative if we move to 84.
Lord Falconer of Thoroton: I do not accept the proposition about the current position, as I am saying the circumstances in which the bad character will go in are wider but you have mis-characterised, in my view, the effect of 82(1)(b), it has to fit in, in a way it is not just minimally reflective of somebody's character it has to satisfy the definition in (b).
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 definition or 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 premiss 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, it would make sure that things like that di 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, 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 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 it 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 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).
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), 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, it 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 again 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, 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.
Q60 Vera Baird: Yes.
Lord Falconer of Thoroton: They would construe a provision of an Act of Parliament as having no meaning.
Q61 Vera Baird: It is otiose. I did not say it had no meaning; it is otiose. Their job is to apply the law, their job is to apply (d) therefore which says that it is admissible if it is evidence of a similar conviction.
Lord Falconer of Thoroton: You are saying----
Q62 Vera Baird: Let me finish.
Lord Falconer of Thoroton: Sorry, I apologise.
Q63 Vera Baird: You are saying it is admissible if it is evidence of a similar conviction, so they will say "That is Parliament's wish". In the next clause they put it in if it is relevant, in the next clause they put it in if it is agreed, in the next clause they put it in if it is probative. We can understand all those tests and we can apply discretion to those but if Parliament says "It just goes in because it is there", how can we then find that contrary to what Parliament is saying it would have an adverse effect on the proceedings to put it in because Parliament has just said that it is admissible?
Lord Falconer of Thoroton: That is a nonsensical reading of the Bill. It says if you get to the point that it is similar or the same then it potentially can go in, but if the defendant objects then the judge must balance its relevance against its probative value. That is what the Bill says. You are saying "But the judges will just ignore the last bit". We have not drafted it with that intention in mind. We have made it absolutely clear that is how it should work and I believe that is the effect that will be given to it. You are obviously not as sanguine as I am.
Q64 Vera Baird: It is not about sanguinity, it is about the conversations that I have had. I have to say to you that with all the flourishes that you attach to the argument ----
Lord Falconer of Thoroton: Sorry.
Q65 Vera Baird: ---- it is not clear what the purpose of (d) is, if it is not just to put them in automatically.
Lord Falconer of Thoroton: To avoid unnecessary legal debate; to consider whether they satisfy 85(1)(d).
Q66 Vera Baird: I am going to ask you about 84 to ascertain one very important point, which is that the test in 82, which is applied in 84 to non-defendants, ie to witnesses, is wide enough to include as against the witness evidence of previous sexual behaviour. I have in mind, clearly, complainants in rape cases. In order to admit previous sexual behaviour now the hurdles in section 41 of the 1999 Youth Justice and Criminal Evidence Act have to be passed. Is there any suggestion that Clauses 82 and 84 together could offer a way around the provisions of section 41?
Lord Falconer of Thoroton: No, and it is most certainly not our intention to do that. If there was any fear that we had done that we would take such steps as are necessary to change that. That is certainly not our intention. We do not think that we have had that effect. Do you think that we have?
Q67 Vera Baird: This is just a worry that it might be used as a way around it.
Lord Falconer of Thoroton: That is certainly not our intention. Indeed, we thought we had made it harder through 84 to question witnesses on previous bad character than is currently the position.
Q68 Vera Baird: That may well be right. This is a Bill that is leaning towards the victims and witnesses and away from defendants. The concern is that if you have two sets of criteria that are applicable to the same factual position it might suggest that there is an alternative route.
Lord Falconer of Thoroton: I do not think we have had that effect. I have been passed a note saying we made an amendment on report to deal with the section 41 point which puts it beyond doubt, but if we have not then obviously we will do something about it. Perhaps I will write. I do not think there is a problem about it.
Q69 Vera Baird: There was an amendment on report? It obviously was not discussed. That is excellent.
Lord Falconer of Thoroton: It suggests that your concerns were well placed.
Vera Baird: That is because I mentioned it in Standing Committee with the much missed Hilary Benn.
Q70 Chairman: Minister, perhaps you will write to the Committee on the section 41 point. If we can move on now to provisions in the Bill which grant to the police the power to retain and use for data management purposes fingerprints and other samples from people who are not charged with any offence. It is obviously right to say that since 1984 the police have had the power to take fingerprints and samples without consent. I am sure it is agreed between us that in the intervening 19 years the procedural safeguards have been progressively relaxed to widen the circumstances in which fingerprints and samples and data derived from them can be retained. Of course, the Bill provides for the taking of fingerprints, which is widely defined to include the taking of impressions of bodily parts, and samples for DNA comparison into a routine process which is unrelated to the investigation of a particular offence. This raises Article 3 concerns about taking fingerprints and samples without consent and Article 8 concerns about the private life in respect of collecting and storing of personal data and allowing any person to have access to that data to use it for any purpose without the consent of the person to whom it relates. When we wrote to you about this you asked us "to accept that any intrusion on personal privacy is proportionate to the benefits in terms of the prevention and detection of crime". You went on to cite a case in the Court of Appeal, Marper v Chief Constable of South Yorkshire.
Lord Falconer of Thoroton: Is that the one about acquittals and DNA samples?
Q71 Chairman: We noted that it was a case concerning the retention of existing records rather than the taking of new samples and fingerprints and storage of the additional records which arise. These things do not happen in a vacuum, so on what basis is the Home Office making this proposal? In how many cases and what sort of cases is the collection of the fingerprints and samples and related data likely to make a significant contribution to the prevention and detection of offences?
Lord Falconer of Thoroton: You separate into two the potential human rights concerns. There are two practical reasons why we want to do it. First of all, where somebody is arrested before charge, being able to take a fingerprint or a DNA sample can assist in establishing the true identity of the person arrested. There are significant numbers of cases where somebody is arrested, gives a false identity, is then released because the identity cannot adequately be checked and it subsequently transpires that the person is not who he or she said they were and, as a result, further crimes are not prevented and the bringing of the defendant to justice for other crimes is not effected. That is one aspect of it. The other aspect of it is, is it right that we should keep fingerprints and DNA samples from people who are, under this provision, arrested but then not charged with anything? It would go into a fingerprint and DNA base and it would be of value in relation to fighting crime. Currently, for example, we keep the DNA of acquitted persons. The consequence of doing that is in the year following that change 400 offences were detected involving some 300 offenders from which DNA had been taken who were then acquitted. The second justification is that if you keep DNA and fingerprints from people who are not charged that will, to some extent, assist you in relation to the identification of who commits crimes which is of social value, as it were. Those are the two justifications for doing it. I have sought to give you the scale in relation to the samples kept from people who are acquitted where crimes have been detected. It does mean that completely innocent people will have had their fingerprints and their DNA taken but we think using that material to build up the DNA and fingerprint base is justified by the assistance it gives in identifying the person arrested and in fighting crime generally in the way that I have described by reference to what has happened in relation to those who have been acquitted.
Q72 Chairman: So what kinds of offences are we talking about here? Serious offences?
Lord Falconer of Thoroton: The DNA and fingerprints can only be taken from somebody who is arrested for an imprisonable offence, so that would set, as it were, a limit on the seriousness of the offence but it would mean, and I accept this, that you could be arresting somebody for a comparatively minor offence which does potentially attract imprisonment as a possible penalty, albeit that the offence is quite minor, but we think you have got to draw the line somewhere and that is the place to draw the line.
Q73 Chairman: There is a distinction really. You talked about "recordable offences" which are not imprisonable.
Lord Falconer of Thoroton: I think the test we have used is "imprisonable" because we think that is a higher test.
Q74 Chairman: In order for this to work as you describe it the database will have to be quite large. How many people's records will need to be accumulated before this database is likely to be any kind of tool in the prevention and detection of crime? Have you made an assessment of this?
Lord Falconer of Thoroton: The numbers I have given you in relation to the use of people's DNA in acquittal cases indicates that I am not sure it is necessarily the size of the database that determines how useful it will be. I have not got them at my fingertips but the numbers of people who were arrested and not charged for imprisonable offences were 300,000 in a year, that is arrested and not charged. Some of them will have been charged in relation to other offences, so it is not 300,000 additional DNA or fingerprint samples but some proportion of that number will be giving additional samples and fingerprints. That pool is a pool in respect of which matches will occur in the future. I cannot tell you how many matches will occur in the future but a judgment has got to be made as to whether it is worth doing, and we think it is.
Q75 Chairman: One of the things that has just been drawn to my attention is new clause 14 introduced by the Home Secretary that refers to the fact "The fingerprints of a person detained at a police station may be taken without the appropriate consent if - (a) he is detained in consequence of his arrest for a recordable offence...." and that is not an imprisonable offence.
Lord Falconer of Thoroton: I got that wrong, I apologise for that. I apologise, that is a recordable offence.
Q76 Chairman: So we are talking about offences which are not in any legal definition serious offences because a recordable offence is not a serious offence, is it?
Lord Falconer of Thoroton: Large numbers of recordable offences, most of them, will be serious offences in the sense that most of them will be imprisonable, but not all of them.
Q77 Chairman: On what evidence does the Government consider that these powers need to be generally available?
Lord Falconer of Thoroton: Because (a) for the identity aspect it allows the police who have arrested somebody to establish more clearly the identity of the person arrested and (b) it permits matching to go on in the investigation of crime subsequently. The figures I have given you in relation to the acquittal cases indicate that it is of assistance there and we believe that it will be of assistance in relation to increasing the pool, which I accept to some extent is an intrusion on privacy but we believe is justified in human rights terms by the benefit in fighting crime.
Q78 Chairman: Does the Government intend to give any advice about the necessity and proportionality tests when it comes to ensuring that there are sufficient safeguards in police stations to ensure that fingerprints and samples would not be taken where the collection would, on the face of it and on the facts of the case, not meet those tests?
Lord Falconer of Thoroton: The human rights tests?
Q79 Chairman: The tests of necessity and proportionality?
Lord Falconer of Thoroton: We only want it to be taken when it is necessary and proportionate. We think that in most cases it would be necessary and proportionate. In some cases it perhaps would not but in the vast, vast majority it would be necessary and proportionate because it is about identification or establishing a pool against which matching can occur for the purposes of the investigation of crime. Recordable offences equals imprisonable offences plus some 50 non-imprisonable offences specified in regulations. This is not any attempt to row back from the statement that I made but it means mostly imprisonable except for some rare regulatory offences. I apologise.
Q80 Mr Chidgey: Can I just ask you some specific questions about the DNA samples and data. I am sure you are as aware as anyone that information about a person's distinctive DNA pattern is particularly sensitive in that people with access to it could use it to identify not just the individual but also the aspect of that person's susceptibility, for example, to various diseases which could affect their ability to gain insurance or employment opportunities. The other point on this is with the advances in cloning technology, access to DNA profiles could be even more threatening. Clearly in the view of the Committee any access to this information requires particularly strong justification. I would like to ask you specifically, if the Bill is going to deal with the effect of the proposals to make this sensitive personal data relating to a large and ever growing number of people available via a national database to a large number of people and bodies, how will the accuracy of the database and access to it be controlled to ensure that any use of or access to the database would only occur only in circumstances where it is justified by reference to the criteria in Article 8.2?
Lord Falconer of Thoroton: The points you raise are incredibly important because the sensitivity of information held on people is very, very significant indeed and we need to be absolutely clear that proper standards are met. The Chief Scientist of the Forensic Science Service is the custodian of the national DNA database under the terms of a memorandum of understanding that he has entered into with the Association of Chief Police Officers who are the legal owners of the data. The custodian sets the standard of performance for laboratories carrying out analysis of samples for the purpose of submitting DNA profiles to the national DNA database, authorising such laboratories to submit profiles and monitoring their performance in the analysis and profiling of samples. The laboratories and the custodian are subject to the Data Protection Act 1988 and the database is registered with the Information Commissioner. Personal data held by the laboratories is kept in secure storage and is accessed only on the authorisation of designated personnel. It is probably not worthwhile for me to read all the details of the protections but it might be of value if I wrote to the Committee setting out in detail what the practical protections are. It is a very, very important issue and we are utterly at one on the need to provide proper protection both in relation to the security and the reliability of the data.
Q81 Vera Baird: Can we move on to double jeopardy, please, Minister. In our Second Report we were reasonably sanguine about the proposal to allow the retrial of certain offences. We did not feel that it collided, as it were, with human rights provisions and thought that the key to it was because the evidence had to be new.
Lord Falconer of Thoroton: Yes.
Q82 Vera Baird: It is really the amendments that have been proposed since to attack that that we are worried about. I think in clause 66 originally it talked about new and compelling evidence to trigger the possibility. If it was new it was not available or known to an officer or prosecutor at or before the time of the acquittal. It was pretty clear that it must be new. In the amendment it says that it is new, as it were, if it "was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related)". In other words, it would be possible to order a new trial to allow evidence to be adduced that time round which could have been, but was not, used in the original trial, which looks like a major shift from your original position. We are worried especially about Article 4 of Protocol 7.
Lord Falconer of Thoroton: It is not our intention to move away from the basic premise that you should only be able to have a retrial in the exceptional circumstances laid down by these provisions where it is new or newly discovered evidence, and by that I mean either it is something that happens after the event, namely a confession after the event, for example, or a DNA analysis that was not available before, or newly discovered in the sense it was around before though even with reasonable diligence it could not have been found. We have had great difficulty in trying to ascertain how you provide a sensible newly discovered test, ie something that was there but nobody could be blamed for not finding it. We believe that that is dealt with by the "it has got to be compelling" and the interests of justice test that come later, and we believe the way that we have done it meets your concerns, your perfectly legitimate concerns, about new or newly discovered being the basic test. We believe the courts will ensure that you cannot effectively have a retrial where it is as a result of a sloppy investigation in the first place that that evidence was not available, which I know is a concern of the Committee and was a concern of the Committee in the House when the Bill was being debated. We think this is a better and more effective way of doing that. It is the same aim, a better way of doing it. If you take a case where it depends quite significantly on scientific evidence, and I do not want to mention individual cases but you can think of quite a lot of cases at the moment, and a new analysis of a whole range of scientific material makes it clear what in fact happened, nobody can be blamed for not doing that analysis but it is a wholly new approach to the case, should that permit a retrial or not? We think that is quite a difficult question but we think let the courts decide on an individual basis.
Q83 Vera Baird: The difference, just to make it clear so I am sure I have grasped it, is that evidence in the original definition was new, if it was not available clearly or if it was not known to an officer or prosecutor already?
Lord Falconer of Thoroton: We were worried. How would that connect in with here are all the scientific facts available, bona fide scientists have analysed it this way, but, in fact, if you look at it again you can see very clearly what happened because of the subsequent analysis? Is that new or not? You could have very hard cases where it becomes utterly obvious what happened from a proper analysis, no sloppiness previously, bona fide scientists come to a particular view, it is just re-piecing together the pieces of the jigsaw. All the concerns that you have expressed are perfectly legitimate. We do not want it to be "I will do a bad job now and a good job later on", that is not what we want, but a proper analysis being done, which is a new way of looking at it, we want the courts to be able to consider whether that is an appropriate case for double jeopardy and we were worried that the previous draft did not quite do that. We are very conscious of the Human Rights Act. I hope that in the formulation I have given you on newly discovered I am explicitly seeking to put it in the way that the Convention requires.
Q84 Vera Baird: To cast the amendment in terms of simply it was not adduced?
Lord Falconer of Thoroton: Yes, because we are relying heavily on judicial discretion here.
Q85 Vera Baird: That is to open the potential category wider than you are describing you are going to rely on judicial discretion to apply only to the categories which you are describing?
Lord Falconer of Thoroton: Exactly. I recognise people's concerns about that. I make it explicit that it is to be done in accordance with the Convention. We believe that is how we have done it. We also believe that because it is so difficult to try and do it with precision in the way that it was done before that this will lead both to greater justice but also proper protection for defendants, because this is an area where there must be proper protection.
Chairman: We are going to move on to the Criminal Records Bureau.
Q86 Lord Bowness: Can I try and put it briefly because I know that time is getting on. The new Schedule that has been proposed and the new section 122A allows the Secretary of State to delegate his functions under the Police Act 1997 to a third party. I understand that the explanatory notes even give the example of a Public-Private Partnership. There is great uncertainty about what is or is not a public authority and we are concerned that anybody to whom the rights are delegated is a public authority because that public authority has the obligation to comply with the Human Rights Act. What steps are being taken to ensure that anyone to whom the functions are delegated will be a public authority within the meaning of the Human Rights Act? Bearing in mind that there is no limitation on delegation to somebody who may be outside the jurisdiction, and lots of data processing takes place outside the jurisdiction now, how can we be sure that the body to whom it is going to be delegated is subject to the jurisdiction of our courts?
Lord Falconer of Thoroton: First of all, your concern is a concern that we have had. We think the right way to approach this, and this is why we have done it, is what the body to whom the work had been delegated would be doing would be in effect performing a plainly public function. Under the Human Rights Act, even if you are a private company, if you are performing a public function you are a public authority for the purposes of the Human Rights Act and would, therefore, be subject to all of the duties conferred or bestowed, whatever that word is, under the Human Rights Act. We think the concern is a real one but because it is a public function that would be performed by the PPP company, for example, they would be treated as a public authority and all the relevant duties would apply. We think that concern is met that way. Obviously separate from the legal position, so the PPP company would be under the same duties, we would need to be very clear that whenever such a function was conferred there would be adequate protection in the contract between the state and the private company.
Q87 Lord Bowness: Can I just follow that up. Is it, in fact, your view and the Government's view that the definition of somebody carrying out public functions is the definition of a public authority in terms of the Act?
Lord Falconer of Thoroton: Yes. I say that a public authority is somebody who performs public functions. That is the way that we have approached it. The question of whether you are a public authority under the Act - you will all know this much better than I - you can be a public authority under the Act without being a public state organisation. This is not perhaps the area to talk about it but there are certain bodies which are private which are plainly providing public roles.
Q88 Lord Bowness: I do not claim to know this better than you do, I am seeking to ask the question but I thought there was great uncertainty still about what is and is not a public authority.
Lord Falconer of Thoroton: I see the officials of the Committee becoming interested in what I am saying at this particular point. We take the view that is the right approach and, having regard to the specifics of the CRB, we also believe that a private company to whom the function was delegated under section 122 would be performing a public function and would therefore be a public authority for the purposes of the Human Rights Act.
Q89 Lord Bowness: Would you be prepared to put that in the Act to that effect on the face of the Bill?
Lord Falconer of Thoroton: Can I take advice on this. I should put this in writing to you first of all so the precise parameters of what I am saying can be properly identified. I will repeat it when the Bill is going through the Lords because I think these ones were not debated at report in the Commons. That is the approach that we are taking.
Q90 Lord Bowness: Thank you very much for that. Can I just go on and ask you again about the Home Secretary's statement that he was going to introduce amendments that would mean the range of registered bodies which could obtain enhanced disclosure about people's criminal records would be extended. Perhaps I can just ask, if you have not done so, if you so intend to introduce these measures? Are you going to be able to ensure that people who seek to get that enhanced disclosure do so only when there is some particular pressing social need?
Lord Falconer of Thoroton: What we intend to do is amend to allow regulations to determine where an enhanced disclosure is required as opposed to a standard disclosure. Yes, we are going to go ahead with those amendments. The effect of the amendments are that it will have to be done by regulation so there would still be a parliamentary process. Secondly, we accept fully the point that you have made, enhanced disclosure should only be required where there is a legitimate social need. We regard the circumstances of where there is a legitimate social need as being where people are going to work with either vulnerable adults or children and before they work with those categories of people there is a proper check, not just on their criminal records but also on any information from local police forces. I accept the proposition that it should only be justified where there is legitimate protection required for children or vulnerable adults.
Q91 Lord Bowness: Can I go back to my original question. I am reminded I asked you about where the private provider was outside the jurisdiction and if, indeed, that situation arose how could you ensure that they are subject to the jurisdiction of the UK courts and, therefore, the Act?
Lord Falconer of Thoroton: It would never be possible to enter into an arrangement whereby a private provider performed public functions without the Secretary of State, who would be delegating the functions, not being satisfied that that provider was subject to the jurisdiction of the courts, both as a matter of practicality and as a matter of law. We would have to ensure before any such arrangements were satisfactory that the provider was subject to the jurisdiction of the court, both as a matter of practicality and as a matter of law.
Q92 Lord Bowness: How would that work with a provider that was actually within the European Union? You would not be able to preclude them from the jurisdiction surely, would you?
Lord Falconer of Thoroton: Sorry?
Q93 Lord Bowness: You would not be able to preclude them, for example, from bidding for a government tender?
Lord Falconer of Thoroton: No, you would not, but by being subject to the jurisdiction you can serve proceedings on them, the court can make orders in respect of them and there are effective means of enforcing them.
Q94 Chairman: Just to follow this through, Minister. There was a recent incident where Capita, a private company, had to pay a penalty under a government contract and it turned out that quite a bit of the data they used had been sent to India. How could that possibly be covered by the Human Rights Act when there is case law to show that some companies or charities which are fulfilling a public function in this country are not public authorities? How could you cover data sent to India?
Lord Falconer of Thoroton: It is not a delegation of any of the section 122 functions at the moment because that cannot be done, so the public function aspects cannot be delegated at the moment. What is going on in India under the Criminal Records Bureau is simply the inputting of information into computers. The public function aspect that I think Lord Bowness is talking about is actually looking at the PNC, which Capita do not do at the moment and cannot do at the moment because of the provisions of the Police Act 1997. Simply inputting data on to a computer, and the data they are inputting is application forms, is not a public function. I do not think it is right to put that as the example with which I have got to deal because most of the public functions that one is talking about will be those that are performed in this country. At the moment I cannot think of a detailed one where it would be outside the jurisdiction. I may not have answered that adequately. Can I come back on that one?
Chairman: Of course, we would be pleased to hear from you.
Q95 Baroness Whitaker: A magistrate posits a presumption in favour of bail, and that is Article 5 of the Convention, so looking at new clause 52 and then paragraph six of the Bail Act, it requires a court to refuse bail to an adult defendant who failed without reasonable cause to surrender, unless it is satisfied that there is no significant risk that he would fail to surrender again. Also clause 12 requires a court to refuse bail if the defendant was already on bail for another offence at the time of the alleged offence. Very briefly, my question is how do you find it compatible with the right to liberty under Article 5.1 to compel a court to remand a defendant in custody where he or she has failed once to surrender to bail and it cannot be said that there is no significant risk of a repetition? For instance, if we have a defendant who presents no significant risk to the public or perhaps their personal or family circumstances would make it disproportionate to remand in custody, perhaps a mum with young children, or a carer of a disabled person, is not their right to liberty being breached in this proposal?
Lord Falconer of Thoroton: It is not an irrefutable presumption. The grounds on which bail can be refused at the moment include risk of refunding and not turning up when required to do so by the court in accordance with the terms of the bail. We are, in effect, intending to say where you have failed to turn up in the past or where you have committed an offence whilst on this bail then because one of the purposes of remanding in custody is to prevent refunding or to get them to turn up, normally that should be a very strong indicator that bail should be refused. It is not ruled out that you could be given bail, the court must consider it, but we are trying to send a signal that if you offend on bail, if you do not turn up, the norm should be that you will not get bail. Of course, if you can satisfy the reasons why you should get bail, then that is possible under the Bill.
Q96 Baroness Whitaker: So it is not strictly a requirement?
Lord Falconer of Thoroton: It is not an irrefutable presumption; it is rebuttable. We want, as it were, the main principles of the circumstances in which bail are given to be truly effective.
Q97 Baroness Whitaker: I understand that, my views are very much the same, but you have changed the presumption, have you not, from in favour of bail to being against bail?
Lord Falconer of Thoroton: Absolutely right. We have said if you fail to comply with the terms of your bail, which necessarily involve turning up or not refunding, then we see nothing wrong in principle in saying, "Right, you now justify why you should get bail."
Q98 Baroness Whitaker: You do not think that a presumption in favour of being locked up is a breach of the right to liberty under the Convention?
Lord Falconer of Thoroton: We do not think so, no, because we think the way the provisions are drafted sends the clearest possible signal that that is how we want the courts to react, but still giving them appropriate discretion.
Q99 Baroness Whitaker: There is only really one exception, is there not, which is at new clause 52 (6)(1) page 1427: "... unless the court is satisfied that there is no significant risk that, if released on bail (whether subject to conditions or not) he would fail to surrender to custody"?
Lord Falconer of Thoroton: Yes.
Q100 Baroness Whitaker: Does that not make a huge inroad in the right to liberty really?
Lord Falconer of Thoroton: I do not think so. Everybody accepts that in Convention terms the purpose of remands is to stop refunding or stop people not turning up. There is a balance that has got to struck that makes the court system work effectively.
Q101 Baroness Whitaker: The balance has gone the other way, you would say, against liberty in this provision?
Lord Falconer of Thoroton: For legitimate reasons, we would say.
Q102 Mr Chidgey: Minister, can I turn to the amending of the Police and Criminal Evidence Act 1984 which contains a requirement for a full record to be kept of the property and possessions of a person attending at a police station. You will, of course, be aware that the Committee was concerned about the impact of this on the safeguards of the right to peaceful enjoyment of possessions under Article 1 and also the risk that other police officers might be subject to allegations of theft or damage to the property. Specifically, can you tell us why the Government is not yet prepared to commit itself to including in the Bill appropriate procedural and record-keeping safeguards to protect the property rights of people in police custody against loss or damage to property caused by other detainees or police officers, and to guard against the risk of false accusations of theft or criminal damage being made by the detainees against police officers or other detainees?
Lord Falconer of Thoroton: There is a balance to be struck between unnecessary record-keeping where it is utterly obvious that there is a moderately large number of items of little financial value and obviously of no significance in relation to a case, and to require police officers to make long lists of those may well, in a number of cases, not be necessary. I recognise fully that there will be significant cases where proper records have to be kept, either because the goods are of value or because they are of significance to the defendant or because they may have some evidential value in the sense it may have real significance for what the defendant was carrying. The balance that has got to be struck is in making sure that there are proper records kept in those cases but, on the other hand, not requiring long lists that are never looked and are obviously of no significance. Is it right to try and strike that balance on the face of the Bill or is it right to deal with that by guidance? We take the view that the right way to deal with that is by guidance. That guidance will be able to strike the sorts of balance that I have indicated. Plainly, if that guidance is not complied with, that would give every basis, one would have thought, for a complaint against the relevant police officer.
Q103 Mr Chidgey: Obviously the Government does consider that the removal of record-keeping requirements leaves in place safeguards for property rights under Article 1 for people detained in police stations, but can you be more specific what those safeguards would be, other than guidance?
Lord Falconer of Thoroton: The safeguards would come in the guidance obviously. They would be things such as the sort of things I have indicated. Plainly you should always record items of value, you should always record items that could be of evidential significance, you should always use sealable bags sealed in the presence of the defendant, but the difficulty is when it is appropriate to go through those steps where on the other hand is it obvious that the precise recording of every single item is really not an appropriate way forward, so striking a balance will have to be done in the guidance, I think.
Q104 Vera Baird: Can I press one more point in that connection. There is capable of being a kind of property which is not obviously significant to a case but which might become significant as the defence develops or as the prosecution develops. Granted that the man making the list in the police station at the beginning cannot easily make those judgments because the custody sergeant would not be an officer involved in the case at all, he would not have any idea of what the evidence in the case is going to be, that is the whole point of keeping him independent of the investigation. So how can we protect people against the danger that no record is kept and then the contents of their possessions when they were arrested does become of high significance in their trial?
Lord Falconer of Thoroton: In very many cases, and I take your point about the custody sergeant who is separate from the case, the material obviously will not be relevant. You are right that there are cases - and I suspect they are quite rare - where what did not look remotely relevant at the time then becomes relevant subsequently, but I say the test should be "it is obviously not relevant, therefore there is no need to keep a list", rather than "does it seem relevant, only then take a list".
Q105 Vera Baird: If the defendant says to the custody officer, "This might be relevant to me later on, will you keep a list?" is that going to be in the guidance?
Lord Falconer of Thoroton: If the defendant is asserting this is relevant then I would have thought it would be very, very hard in those circumstances to justify not keeping a list.
Q106 Vera Baird: Will you put that in the guidance, that the defendant will have a right to say, "I want to have this kept because I think some of this is going to be relevant later"?
Lord Falconer of Thoroton: I am very wary of trying to draft guidance on the hoof but where a defendant asserts that it is relevant it seems to me in those circumstances it would be appropriate to make a list.
Q107 Vera Baird: One final point, clearly because he has the right to keep his powder dry about how he is going to present his case later he will be entitled to say, "I regard this as likely to be relevant to my case", without the requirement of any explanation at the time?
Lord Falconer of Thoroton: The thought that was going through my mind is what happens where there is an assertion that you could see no possible justification for, and I do not know how one would deal with that in the guidance, I need to think about that.
Q108 Vera Baird: Your balance is between your rule being a waste of time because the defendant will always ask for it to be kept ---
Lord Falconer of Thoroton: --- Exactly.
Q109 Vera Baird: --- And on the other hand, the defendant being forced to show his hand about his defence when it is at the very early stages of his arrest by explaining its potential relevance? That is the balance, is it not?
Lord Falconer of Thoroton: What happens where you are charged with an assault outside a pub and you are carrying 500 files from your law practice, do you have to list every single one of the files when it is pretty obvious that it was just after a heavy week at work that the assault occurred?
Q110 Vera Baird: You are picking an example where it is probably quite unlikely that it would be relevant.
Lord Falconer of Thoroton: But the lawyer says list all these.
Q111 Vera Baird: There are a few cases in which quite late in the day it becomes clear that what is on the custody record is going to determine a major part of the evidence.
Lord Falconer of Thoroton: I recognise that, I accept that.
Q112 Vera Baird: I think you said before that you did, but I am not sure how that eventuality can be catered for and are you really trying to save time for the police in this position? Is there not a compromise which would allow all the property to be put in a big plastic bag as a matter of course and sealed by the defendant and custody sergeant and then at some later stage a much more menial person could make a list, if it is required at all? If he is released and there is no charge to follow, no-one will want it kept, but if he is going to be charged, in order to protect against that eventuality, is it not prudent to that?
Lord Falconer of Thoroton: Sometimes that is possible, sometimes it is not. As you rightly point out, one of the problems in this area is that very often no charges follow after the arrest and then the material is all handed back. One needs to try and deal with all of those eventualities. I see the force of the single plastic bag ---
Q113 Vera Baird: They will get it back because nobody cares any longer.
Lord Falconer of Thoroton: One needs to look at that and one needs to see how that can be dealt with in the guidance. I cannot commit myself at the moment but I see the force of what you are saying.
Q114 Chairman: There are some circumstances in which an old bus ticket might turn out to be very relevant in a case. Is the Government doing this because the police have asked you to, is it about cutting down bureaucracy?
Lord Falconer of Thoroton: The Government have obviously made a judgment about it, the police have pressed us to try to reduce bureaucracy in a number of areas. One of the areas mentioned is the fact that a lot of listing goes on in respect of property over which there is no issue and which has no significance subsequently.
Q115 Lord Bowness: The new clause 46 on page 1467 concerns the amendments to the Firearms Act and minimum sentences. It imposes minimum sentences of five and three years depending on the age of the offender and sub-clause 2 says that is to be imposed unless "the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so." We are advised about the case of R. V Offen where the Court of Appeal considered that it could discharge its responsibility under the Human Rights Act by taking a view about the meaning of "exceptional circumstances" to justify not imposing a life sentence. It took into account the degree of continuing risk that the offender posed, and because the repeat offender did not pose a risk, it was treated as an exceptional circumstances to justify not imposing a life sentence. What circumstances do the Government envisage as amounting to exceptional circumstances, with the exception of the Offen case, which would enable the courts to impose lesser sentences, both with regard to circumstances relating to the offence and indeed to the offender?
Lord Falconer of Thoroton: It is for the courts obviously to construe what is meant by "exceptional circumstances". We would not necessarily accept that the offence in the Offen case would lead to the same conclusion in relation to firearms offences. We are keen by the way we have drafted it to do the following: to send the clearest possible message that if you have a firearm you will get the minimum of five or three years. The sorts of exceptional circumstances we have in mind are in relation to the offence, for example, where it is perfectly clear that what has happened is there has been an administrative failure to renew a firearms' licence. In relation to the offender we would envisage circumstances, for example, where a firearm covered by the Act was found, for example, in the property of somebody who had died and it was then in the possession of somebody who had inherited it. You would not envisage those circumstances to lead to five years. Those are exceptional in our view. We do not think by putting in "exceptional" in this particular provision that the effect is you have got to be sure that the defendant is a danger before you pass the five-year sentence because we think what we are really saying, save for the sort of exceptional circumstance I have identified, which covers both an offender and offence, that you assume it is dangerous, and that is the message that has got to go out.
Q116 Lord Bowness: But does that not lead to difficulties about fair trials if courts are bound in that way?
Lord Falconer of Thoroton: The effect of minimum sentences, as the courts have indicated, is recognising it as exceptional, so there is some degree of discretion. What the courts are doing as a result of minimum sentences is imposing sentences that they would otherwise impose on that particular defendant and the courts have accepted that is the approach that comes from minimum sentences. In a sense, that is the desired effect of minimum sentences.
Q117 Chairman: Minister, if we may now turn to the amendments which relate to a minimum period of imprisonment to be served by people convicted of murder and of course the new clauses are designed to remove the incompatibility of section 29 of the Crime (Sentences) Act 1997 under which the Secretary of State was ultimately responsible for setting a minimum period. Obviously it would seem to us that by removing these incompatibilities the Government is keen to limit the discretion of judges in setting minimum terms and to make Parliament responsible for setting the guiding principles. Of course, it is very important to set that against the necessity for courts to preserve their independence from the executive and of the legislature, and to set a minimum period of imprisonment which is relevant not only in terms of taking account of all the circumstances but relevant to the defendant and the circumstances of the offence. The Home Secretary, on the other hand, has let it be known that he anticipates that the statutory starting point produces higher minimum sentences in some cases than would have been imposed by him on advice from judges. So what effect does the Government intend these provisions to have?
Lord Falconer of Thoroton: In human rights terms it is for the courts to exercise their discretion as far as individual cases are concerned, and we have very little doubt that the effect of these guidelines does that. It provides starting points, it indicates what should be mitigating or aggravating circumstances, but it is absolutely plain that it leaves it, in the context of those guidelines, to the judges to identify in each individual case what the sentence should be. We take the view that it is perfectly appropriate for Parliament to identify a broad framework for sentencing and, indeed, we think that is what Parliament always does in relation to particular crimes because normally the way that a sentence would be set would be by Parliament setting a maximum, which indicates how seriously they regard a particular crime. So, for example, we have also amended the Bill at report stage to increase the maximum for death by dangerous driving from 10 to 14 years. The plain purpose of that is to signal to the judiciary that we think it is perhaps more serious than a ten-year maximum would otherwise imply. Similarly, in relation to murder, which covers a whole myriad of circumstances, it is perfectly legitimate for Parliament to signal what they think the sorts of levels of sentence would be, but we recognise it must be done in such a way that the judges have discretion and they operate independently in determining each individual case. There are cases plainly where it may well lead to higher individual sentences than currently. One example, though it is very difficult to determine whether it will in fact occur because the comparator is with how the Home Secretary was setting tariffs before, is whole life tariffs, which were quite rarely set before and, indeed, the Lord Chief Justice Practice Direction, which was published I think last year, does not specifically refer to whole life tariffs. The guidelines do refer in exceptional cases to whole life tariffs. That will probably lead to more whole life tariffs than previously, although if one looks at the tariffs the Home Secretary was setting before the Anderson case there were examples of whole life tariffs or tariffs that had that equivalent where, for example, a 50-year tariff was set on people where that would mean, in effect, they were very likely to spend the rest of their lives in prison. There is nothing objectionable, just as there is nothing objectionable in an increase in the maximum for death by dangerous driving, in the legislature setting the framework so long as the judges have sufficient discretion, which I am quite sure they do here.
Q118 Chairman: I think there is no dispute that death by dangerous driving has been an issue which has been of great concern to parliamentarians for a very long time. I have certainly had constituency cases where that is an issue. What would the effect of this be on battered women who killed their husbands, about which many of us have very great concern because we do not feel the criminal justice system takes this issue seriously. Would those women not face an automatic 15-year sentence?
Lord Falconer of Thoroton: Not automatic. Interestingly enough, in relation to mitigating circumstances there is absolutely no doubt on the facts of the individual case of your sort of example that a defendant who has been physically victimised over a long period of time is plainly and explicitly something taken into account in the mitigating circumstances.
Q119 Vera Baird: You would not envisage that that is a target group in any way, the Government does not intend that the current level of tariffs for battered women who kill ought to get higher?
Lord Falconer of Thoroton: I slightly pause because I do not know adequately what the average rate is in relation to those women.
Q120 Vera Baird: Around eight to 10.
Lord Falconer of Thoroton: The principles set out as amended by the report stage give the judges, we believe, adequate powers to reflect that. We were not intending by the principle to increase sentencing in that area, nor do I believe we have done.
Q121 Chairman: Minister, thank you very much for appearing before us. There have been parts of today's session which have seemed like a court of law and I have wondered whether I should be wearing robes and suggest that we adjourn.
Lord Falconer of Thoroton: I feel I have allowed myself to get dragged into legal matters!
Chairman: These are legal matters and it is inevitable that some of the language will be used. We thank you very much for the way in which you have dealt with the questions we have posed to you. I declare the meeting closed