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(c) he has sought leave from a judge of the Crown Court on an ex-parte application."

The noble Baroness said: Amendment No. 137 is consequential. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 [Urgent investigative steps]:

[Amendment No. 137A not moved.]

Clause 79 agreed to.

Clause 80 agreed to.

Clause 81 [Bail and custody before application]:

[Amendments Nos. 137B and 137C not moved.]

Clause 81 agreed to.

Clause 82 [Bail and custody before hearing]:

[Amendment No. 137D not moved.]

Clause 82 agreed to.

Clauses 83 to 89 agreed to.

15 Sept 2003 : Column 707

Baroness Anelay of St Johns moved Amendment No.137E.

    After Clause 89, insert the following new clause—


(1) There are to be rules of court (to be called "Criminal Evidence Rules") governing the use of evidence in the criminal courts.
(2) Criminal Evidence Rules are to be made by a committee known as the Criminal Evidence Rules Committee.
(3) The power to make Criminal Evidence Rules includes power to make different provision for different cases or different areas, including different provision—
(a) for a specified court or description of courts, or
(b) for specified descriptions of proceedings or a specified jurisdiction.
(4) Any power to make or alter Criminal Evidence Rules is to be exercised with a view to securing that—
(a) the criminal justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed."

The noble Baroness said: It is fortuitous that the noble Baroness, Lady Scotland, is the Minister responding to this group of amendments, because she will recall the time that we spent on the Courts Bill, when the Government introduced several clauses that set into statute rules committees. The short explanation of our purpose is to ask the Government to explain why a rules committee with regard to evidence will not also be set in statute. I beg to move.

Baroness Scotland of Asthal: I am happy to respond, and will try to do so fully, so that I can explain how we will make the provision work.

Amendment No. 326, which has not yet been printed, in the names of the noble Lord, Lord Kingsland, and the noble Baroness, would establish a criminal evidence rules committee. The amendment is based on provision in the Government's Courts Bill—as the noble Baroness said—for a criminal procedure rules committee. However, the remit for the committee proposed by this amendment would be rules of court governing the use of evidence. We fear that this amendment may be based on a misunderstanding, although from what the noble Baroness said, she may be seeking only clarification.

We are entirely sympathetic to the proposal that rules of court should be made by a rules committee in future. However, that is already the effect of provisions in the Courts Bill, as I have mentioned. That Bill fully empowers the new criminal procedure rules committee to make rules of court for criminal proceedings.

Rules of court deal with a level of detail about practical and procedural matters that it would be inappropriate to include in primary legislation. They therefore cover the detail of, for example, notice of appeals to the Crown Court, the jurisdiction to award costs and applications for witness' summons. They also cover rules in support of evidential matters—rules

15 Sept 2003 : Column 708

governing applications for leave to adduce previous sexual history evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999, applications for special measures directions for witnesses also under the 1999 Act and applications for evidence to be given through live link from abroad under Section 32 of the Criminal Justice Act 1988.

Provision for rules of court relating to evidence are also made in this Bill—in Clause 104, for example, which provides for rules to be made for a defendant to give advance notice of his intention to rely on the bad character evidence of a co-defendant. Clause 125 also provides for rules to be made in relation to notice requirements when a party wishes to adduce hearsay evidence. Those are all matters that, in the future, will properly fall under the scope of the criminal procedure rules committee. That strikes the right balance in allowing appropriate matters of practice and procedure to be dealt with by the new committee, while maintaining Parliament's current role in relation to changes in the substantive law.

Therefore, although I absolutely agree with the thrust of the amendment that rules of court should be dealt with by a rules committee, I do not consider that it is necessary for a separate committee to be set up for that to be achieved. I do not believe that that was what the noble Baroness proposed. I think that she just wanted me to confirm that the hours and hours that we spent on the Courts Bill will not be wasted. I can assure her that they will not. I hope that that explanation of the role of the new criminal procedure rules committee reassures noble Lords and that the noble Baroness will feel able to withdraw the amendment.

Baroness Anelay of St Johns: I am grateful to the Minister because she has been able to provide the further clarification and certainty for which I hoped. We spent goodness knows how many hours and days on the Courts Bill, as the Minister said. The difficulty is that, when that Bill returns to us from another place, we will not have the opportunity to ask the questions that I just asked with regard to the criminal procedural rules committee, because we did not have this Bill before us when we debated that Bill, so I could not ask questions within that context—hence the rather peculiar reasons for tabling these amendments today.

It is also important that the Minister's clarification and explanation are available to those practitioners who will read this Bill and will want to see how Clause 104 in particular will ultimately operate. I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 137F to 137J not moved.]

Clause 90 ["Bad character"]:

Lord Kingsland moved Amendment No. 138:

    Page 60, line 38, leave out "or tends to show"

15 Sept 2003 : Column 709

The noble Lord said: the amendment concerns—

Noble Lords: Hear, hear.

Lord Kingsland: The amendment concerns the expression "tends to show" in Clause 90(1), Part 11 of the Bill. The relevant part of clause states:

    "For the purposes of this Chapter, evidence of a person's bad character is evidence which shows or tends to show that . . . he has committed an offence, or . . . 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".

The intention of the amendment is to probe the expression "tends to show". It seeks to probe not only the degree of probability that the Government have in mind but whether its scope could include an acquittal, in circumstances in which it was admitted that an offence was committed other than that on the indictment. I beg to move.

Lord Renton: I warmly support the amendment. In criminal cases, those concerned should never judge things on a balance of probability. All the time, proof by the prosecution must put matters beyond doubt. "Tends to show" would raise doubts. Therefore, my noble friend Lord Kingsland is quite right.

Lord Mayhew of Twysden: I support the amendment because the clause permits the admission of evidence of behaviour as evidence of bad character in circumstances that are dangerously tentative. The words "tends to show" perform the greater part of the mischief. Although they are not the whole of it, they are bad enough.

Let us suppose that we, as prosecutors, are addressing the defendant and we are explaining our attitude to this part of our case. We might say that we rely on this aspect of the defendant's behaviour because it tends to show that he or she is disposed to behave in a way that,

    "might be viewed with disapproval by a reasonable person".

That would have to be,

    "in the opinion of the court"

in this clause. However, how can one be more tentative than to conjure up a concept that "tends to show" not that the defendant has behaved in the way alleged, but that he is disposed to have behaved in a way that it suits the Crown to allege, and which might—not must—be viewed with disapproval by a reasonable person?

I have not been sufficiently diligent to look up whether the expression "tends to" is to be found in the criminal law. It may be that, in proper circumstances, it is, but it certainly ought not to appear here, for the reasons that the noble Baroness has given and I have sought to enhance.

Lord Thomas of Gresford: We support the amendment because we do not understand who will decide. Presumably, it is the judge, in the first instance, because there is a reference to,

    "the opinion of the court".

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The judge to whom applications for the admission of evidence of bad character are made must carry out an inquiry into whether the evidence that is relied on by the prosecution,

    "tends to show that he . . . is disposed to behave, in a way that . . . might be viewed with disapproval by a reasonable person",

not by the judge. The judge is set an almost impossible task. The provision could refer to all sorts of evidence that may be before the court.

The most relevant matter—the noble Lord, Lord Kingsland, briefly referred to it—is whether the evidence tends to show that a person,

    "is disposed to behave, in a way that . . . might be viewed with disapproval",

if he has faced a trial and been acquitted of an offence. If evidence of acquittal is to be introduced as evidence of bad character, we have run a coach and horses through the entire corpus of the English criminal law as we have known it over centuries.

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