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Lord Lloyd of Berwick: In sympathy.
Baroness Scotland of Asthal: In sympathy? I shall take it as agreement. I shall take what I can get.
As noble Lords will know, the three cases I have cited were all concerned with multiple allegations where the evidence of one complainant was held to be admissible in respect of other charges. Indeed, the first major attempt at laying down similar fact principles was the case of Makin as far back as 1894. That case also involved evidence of bad character other than previous convictions. It involved a charge of the murder of a baby and evidence that the bodies of 13
other babies had been found buried in the garden of the defendant's house and previous properties was admitted to rebut a defence of accidental death.This strand of the definition also covers evidence relating to charges on which the defendant has been acquitted. I have already mentioned the case of R v Z. If Amendment No. 138 were to be accepted, it would remove from the definition much valuable evidence that is already recognised as being admissible under the current law. Such evidence should be covered by the scheme and it is important that the definition should ensure that that is the case.
I hope that that explanation of this part of the clause has reassured noble Lords that the amendment can be withdrawn. I look forward with joy to the debate on Clauses 92 and 93.
6.45 p.m.
Lord Thomas of Gresford: As I understand the noble Baroness, she is saying that the words "tends to show" are the statutory means of dealing with similar fact evidence. I have not understood that. It is a very interesting concept. I suggest that the Minister goes away and considers whether, if similar fact evidence is to be given a statutory form, it should appear specifically in the Bill so that we know what we are talking about. I had thought that,
- "tends to show that [a person] . . . is disposed to behave, in a way that . . . might be viewed with disapproval by a reasonable person",
Lord Wedderburn of Charlton: I put this point to my noble friend the Minister with great humility because it breaks a self-denying ordinance that I have imposed upon myself. Although I am a lawyer I am not mainly experienced in criminal law, and with such august authorities in the Committee it is perhaps intemperate of me to put even a small point.
I have no similar experience of the criminal law but I have a great deal of experience of what people say, which tends to show that I am disposed to behave in a manner which might be viewed with disapproval by what they call "reasonable persons". In fact, I have spent quite a large part of my life showing to those who claim to be reasonable persons within that formula that their view could perhaps be challenged.
I have not gone clubbing to the hours referred to by the noble Lord, or usually stayed in bed, but I have equivalent experiences, with which I shall not bore my noble friend on the Front Bench. Does she realise that this is not about going beyond convictions? I have listened very carefully—I do not think we are discussing Amendment No. 139—and this is about entering new territory where, without bothering to read all the words, "tends to show" is really quite extravagant.
Baroness Scotland of Asthal: I do not believe that it is. I make no comment on my noble friend's
behaviour—perish the thought—but he can be reassured that even if he did have a character which tended to show to a reasonable person what we have just outlined, it would be admissible in evidence only if it fell within Clause 92, if he was a witness in a case, or Clause 93 if he was a defendant. So my noble friend would have the security of knowing that the limitations in Clauses 92 and 93 in respect of any of that information or evidence would bite.
Lord Morris of Aberavon: Perhaps the noble Baroness can ease my mind on the point of the phrase "tends to show". Does it seek to express the common law as regards similar facts as it is now, or does it extend it?
Baroness Scotland of Asthal: It seeks to encapsulate the common law as it currently stands and also to extend it in a way that gives greater clarity and modernises and updates the position. For example, it is right that much of what is in Clause 93 is already reflected in some detail in the jurisprudence, the case law, with which we have had to deal for many years.
Noble Lords—particularly those who have the wonderful pleasure of mastering Archbold—will know that the section on bad character is quite extensive and that the case law is quite complex. Practitioners should be forgiven for not knowing each and every nuance of it. For example, there are many who are not familiar with R v Z, of which we have had perhaps a mild demonstration today.
Lord Kingsland: I find that in this—dare I say it?—distastefully populist Bill there are many poisoned chalices. Chapter 11 contains pure strychnine. I have every sympathy with the Minister. She said in the course of her response to my amendment that clarity and certainty were crucial in this complex area of the law. If that is so, I am bound to say that the Government have got off to a very bad start in Clause 90.
I gather that the Minister is not inclined to accept the generous offer of the noble Lord, Lord Clinton, to go away and reconsider.
Lord Clinton-Davis: Lord Clinton-Davis.
Lord Kingsland: Lord Clinton-Davis. I beg his pardon most humbly. I certainly ought to have known that. Is that so?
Baroness Scotland of Asthal: This, of course, is Committee, and I hope to be able to explain the Government's scheme fully and comprehensively to noble Lords so there can be a better understanding about it. Of course I will listen very carefully to everything that is said, and we will reflect upon it before the Bill comes back on Report. That is in relation to each and every clause. If the noble Lord is asking whether we will specifically resile from any of it,
I, like noble Lords, will have to listen to all the debate and give it some mature consideration, but I can certainly give the noble Lord no promise.
Lord Kingsland: I am most grateful to the noble Baroness. Relating that to the contents of her response to what noble Lords have said, I feel compelled to test the opinion of the Committee.
6.51 p.m.
On Question, Whether the said amendment (No. 138) shall be agreed to?
Their Lordships divided: Contents, 113; Not-Contents, 90.
Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Barker, B.
Blatch, B.
Bowness, L.
Bridgeman, V. [Teller]
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chalfont, L.
Chalker of Wallasey, B.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Fearn, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Freeman, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Habgood, L.
Harris of Richmond, B.
Hereford, Bp.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Hunt of Wirral, L.
Hylton, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kilclooney, L.
Kingsland, L.
Lane of Horsell, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Montrose, D.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Razzall, L.
Renton, L.
Roberts of Conwy, L.
Roper, L.
Rotherwick, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Trumpington, B.
Turner of Camden, B.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Winchester, Bp.
Worcester, Bp.
Acton, L.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B.
Jones, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morgan, L.
Palmer, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prys-Davies, L.
Radice, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Sainsbury of Turville, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Temple-Morris, L.
Tomlinson, L.
Turnberg, L.
Varley, L.
Warwick of Undercliffe, B.
Whitty, L.
Williams of Mostyn, L. (Lord President of the Council)
Winston, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Kingsland moved Amendment No. 139:
The noble Lord said: As it turned out, much of the debate with respect to Amendment No. 139 has already taken place. Could I expedite matters by asking the Minister whether she would be prepared, in the light of the previous vote, to undertake to reconsider the wording of Clause 90(1)(b) and to return with a much more specific expression that would cover the circumstances in which bad character could be evidence in the Bill and, therefore, subject to the rules on admissibility? I beg to move.
Page 60, line 40, leave out paragraph (b).
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