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Lord Carlile of Berriew: I too support the amendment. Criminal cases are tried by an evaluation of evidence. When the evidence is given, the jury is instructed in legal directions by the judge on how to evaluate certain types of evidence. It would be interesting to know whether the Government have asked the judges who draft the specimen directions for the Judicial Studies Board whether they have attempted to produce a specimen direction whereby a jury could have explained to it how it is supposed to evaluate something that is not evidence, in the sense in which that word is generally understood.

Will the noble Baroness tell us how the Government expect juries to be directed to evaluate such material? In common with others who spoke, I suggest that it cannot be done in a sensible and just way.

Lord Clinton-Davis: I hope that my noble friend will think again about the provision. I speak in the main as a supporter of the Government but the provision is inequitable. All I ask is that my noble friend thinks about it again.

I have been much persuaded by the arguments adduced by the Opposition and by the Liberal Democrats. A prima facie case has been made that the matter should be thought about again and brought back to the House on Report.

The Lord Bishop of Worcester: I too hope that the amendment will be made. The words "bad character" are difficult, when applied to the subsection. There are people who behave in ways that might be thought likely to be,

but who do so only in certain circumstances. I think, for example, of people who behave in certain ways under extreme provocation but who would not behave in those ways otherwise.

It is extremely difficult to know how to decide whether certain sorts of behaviour tend to show something; that is, are witness to a tendency to behave in such a way in all circumstances or, in particular, in

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circumstances relevant to the issue under trial. It is a doubtful characteristic to introduce by way of mere words, such as "tends to show".

6.15 p.m.

Lord Borrie: It is, in a way, unfortunate that we are discussing the amendment in the context of Clause 90. As everybody has said in the debate so far, the phrase "bad character" is given an extraordinarily wide definition in Clause 90. I refer to what the noble Lord, Lord Renton, said: the key thing is whether evidence of bad character is admissible. For that, we must see Clause 92, for the non-defendant's bad character, and Clause 93, for the defendant's bad character. There is a list of requirements that must be satisfied for the evidence of so-called bad character to be admissible in court. That is what is important.

Lord Wedderburn of Charlton: Is my noble friend speaking for or against the amendment?

Lord Borrie: I was trying to be helpful.

Lord Carlisle of Bucklow: Like the noble Lord, Lord Borrie, I had intended to reserve anything that I wanted to say until we debated Clauses 92 and 93. However, as we have gone into the area already, I must say, without hesitation, that this is the most dangerous part of the Bill. It is thoroughly bad, and I hope that it will be thrown out as a whole. However, I shall stick to the amendment for the moment.

How vague can we be? The Bill refers to evidence that "tends to show" that a person has behaved in a way that,

    "in the opinion of the court, might be viewed with disapproval by a reasonable person".

How on earth is a judge to explain to a jury that it must be satisfied that a piece of evidence "tends to show" that such behaviour,

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

not by them or by anybody else, but, apparently, by "a reasonable person"? With respect, I think that the whole clause is nonsense.

Lord Ackner: What about the person who can be shown to have set out to commit an offence but then to have decided that he will not, after all, because something has appealed to his conscience? He has behaved in a way that showed that he was disposed but decided to change that. Is he to have his character put in in that way? Once one is disposed, can one not cancel that disposition?

Baroness Scotland of Asthal: First, I add my voice to those of noble Lords who said, "Hear, hear", when the noble Lord, Lord Kingsland, reappeared at the Dispatch Box. I hope that the House will allow me to say what pleasure it gives us to see him back securely in his place.

Noble Lords: Hear, hear.

Baroness Scotland of Asthal: The noble Lord was as telegraphic in his delivery as ever, but some of the

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issues that have been raised by noble Lords have widened the debate. It may be helpful if I give a broader exposition of the Government's position, to respond, in particular, to the import of what the noble Lord, Lord Kingsland, asked for. He said that it was a probing amendment.

Before I go into detail, I shall sound a note of caution. The noble Lord, Lord Thomas of Gresford, said that admitting evidence of acquittal to court hearings would drive a coach and four through current provisions. That was echoed by the noble Lord, Lord Carlile of Berriew, and others. I should remind the House that, in the case of R v Z, which is part of our jurisprudence, it is already permissible.

It is already the case that evidence relating to charges for which the defendant has been acquitted can be admitted into evidence. That follows the ruling made by the House of Lords in the case of R v Z in 2000. Our proposals preserve the effect of that judgment. It will therefore be possible to admit evidence from previous cases if it is relevant to the current charge, even if the defendant had been acquitted in the previous proceedings. The evidence might be relevant, for example, to lend weight to the victim's account in the current case or to give the lie to the defendant's explanation. However, the court will be able to exclude such evidence if its prejudicial effect outweighs its probative value.

Lord Kingsland: I apologise to the noble Baroness for intervening so early in her response. Perhaps she could clarify something about the recent House of Lords decision on acquittals. In Clause 90(1), the expression "tends to show", under subsection (1)(a), relates to the phrase,

    "he has committed an offence".

I assume that it would be improper, or not intended by the Government, under Clause 90(1)(a), that an acquittal be adduced in evidence; it would apply only to Clause 90(1)(b).

Baroness Scotland of Asthal: The noble Lord is right, but it is important that we start with that point. It is clear that there seems to be an imprecise understanding of what our current jurisprudence actually holds. It is important for us to have clarity in relation to these matters because it is possible to become unnecessarily excited. I am sure that there is sufficient to become excited about, but we should restrain ourselves to those matters which deserve it.

This is an extremely important part of the Bill; namely, the new statutory rules for the admission of evidence of bad character. Therefore, I do not detract from anything said by the noble Lord, Lord Carlile, the noble and learned Lord, Lord Mayhew, or others in that regard. At this stage, we are concerned with the ambit of the new rules; that is, what evidence should have its admissibility determined under this scheme?

One of the aims of this part of the Bill is to achieve a degree of clarity and certainty in an extremely complex area of law. We therefore wish to establish a clear scope to the scheme. Clause 90 sets out what evidence

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is covered by the new rules by providing a statutory definition of evidence of bad character. All Members of the Committee who have spoken will know well that currently there is no statutory definition of "bad character".

Amendment No. 138, standing in the names of the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Anelay of St Johns, and Amendment No. 139, standing in their names and that of the noble Lord, Lord Dholakia, both seek to restrict this definition. The combined effect of those two amendments would be to limit the definition of bad character evidence so that the evidence must show that the defendant has committed an offence. Essentially, that would mean evidence of previous convictions.

It might be helpful if I deal with the general issue of why we consider it important to have a wide definition relevant to both amendments, and then with the particular issues raised by Amendment No. 138. I think it was the noble Lord, Lord Renton, who mentioned the wide definition, but it was echoed by a number of other Members of the Committee.

Current law already recognises that evidence going beyond previous convictions should be capable of admission in appropriate circumstances. We wish to ensure that that can continue to be the position. It would be a grave mistake to limit the law in the way suggested—a point to which I shall turn shortly.

I should however emphasise that the definition of bad character in Clause 90 sets out only what evidence is covered by the scheme; it does not make this evidence admissible. Admissibility is determined by Clause 92, in the case of non-defendants, and Clause 93, for defendants. The sole purpose of Clause 90 is to define "bad character"—the details of which I am sure we shall discuss in due course, and which I can anticipate. It does not impinge on whether that bad character will be admissible in evidence. Clauses 92 and 93 set out clearly the circumstances where this evidence can be adduced and appropriate safeguards. Therefore, a wide definition is desirable. Evidence that is caught by the definition can be admitted only where it meets the requirements laid out in the remainder of the scheme.

In particular, we do not wish to suggest, by narrowing the definition, that such evidence falls outside statutory rules. It is important to recognise that such evidence, while capable of being highly probative and therefore properly admissible in appropriate circumstances, might also be very prejudicial. It is therefore important that particular rules should apply to its admissibility.

On that, it is important to remember that the new statutory scheme is intended to deal comprehensively with evidence of bad character. To that end, Clause 91 abolishes the current common law rules in this area, and current statutory provisions are also repealed. So we are starting from scratch. As a result, the common law rule which excludes the admission of evidence of misconduct is swept away, as well as the current

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exceptions to that prohibition, such as the similar fact rule. I note that Her Majesty's loyal Opposition has not put its name to amendments which would retain the current law. Members of the Committee will know that there has been a great deal of debate about lack of precision and that we now need this comprehensive overhaul of the system.

In the absence of particular rules to regulate the admission of this potentially prejudicial evidence, it is essential that it is covered by the scheme. By drawing the definition widely, we ensure that it is admitted only when appropriate and subject to the safeguards that apply under the scheme.

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