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Lord Thomas of Gresford: I regret to say that I do not feel reassured. I am sure that the noble Baroness is aware of the concerns expressed about whether the provisions accord with the European Convention on Human Rights. The Joint Committee on Human Rights has expressed a strong view that there is no equality of arms as a result of those clauses. I am sorry that that has not been taken on board in the Bill. I will consider the Minister's response, but the matter will undoubtedly recur.

Lord Carlile of Berriew: Before we determine the matter, perhaps I might ask the Minister to reflect on the matter, for two reasons. First, as she knows, in a criminal trial one cannot adduce evidence that goes to credit alone. It is not a matter in issue in the trial. I have a concern about whether the words of subsection (1)(b) would in themselves allow cross-examination as to credit on the basis of a witness's previous convictions, when the witness's credit is not a matter in issue in the trial in the conventional sense.

The second matter that I ask the Minister to reflect on is the effect of subsection (3) on subsection (1)(b). Earlier in our debates, the Minister said that there was a lot of material in Archbold about the existing law on bad character. During the dinner break, I nipped into the Library and looked in Archbold 2003. There are 15 pages—pages 1135 to 1150—on a body of law that has existed in its present form since, at least, the Criminal Evidence Act 1898. Fifteen pages for 105 years of law is not bad.

It seems to me, looking at subsections (1)(b) and (3), that we will have 15 pages of Archbold on that narrow subject in two or three years, if we are not careful. I urge the Minister to be certain that we are not unintentionally making the law worse, before she tries to persuade the Committee that we should definitely accept the clause.

9.15 p.m.

Baroness Scotland of Asthal: We will consider the matter, but it is our understanding that the way in which Clause 92(1)(b) should be interpreted would enable evidence to be given that is probative of the matter in issue. That will cover evidence going to the

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witness's credibility. That is our understanding of the clause. I do not suppose that the noble Lord wants me to reconsider that, as it seems to accord with what he would wish. If our understanding were to change, on reflection, I will, of course, come back on the matter, but I do not think that the noble Lord would want me to.

Clause 92 agreed to.

Clause 93 [Defendant's bad character]:

Lord Kingsland moved Amendment No. 140:

    Page 62, line 10, after first "if" insert "it has direct relevance to issues in the case"

The noble Lord said: I want to say immediately that our view of the expression "issues in the case", as contained in the amendment, is that it is narrower than the definition provided by the Government in Clause 96(1)(a) and (b). In Clause 96, the Government include, as an issue between the defendant and the prosecution, the question of whether the defendant has,

    "a propensity to commit offences of the kind with which he is charged".

We disagree.

At the end of the sitting before dinner, the noble Lord, Lord Thomas of Gresford, raised the question of the compatibility of the Government's proposals with the views of the Law Commission. The Law Commission has expressed a view on the scheme of Clause 93, and it is contained in paragraphs 6.64 and 6.65 of its report Evidence of Bad Character in Criminal Proceedings. The report says:

    "it is axiomatic that only relevant evidence should be admitted. Not all evidence for bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter, if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion. We therefore favour a general rule excluding bad character evidence (subject to exceptions) rather than a general inclusionary rule, subject to a discretion to exclude".

The position taken by the Law Commission is diametrically opposed to that taken by the Government.

The issue of relevance is of central importance as a gateway to admitting any bad character evidence. I beg to move.

Lord Hylton: I would like to ask a naive layman's question. This clause and the preceding one, Clause 92, both say that:

    "all parties to the proceedings agree to the evidence being admissible".

When would that agreement be reached—in open court, in chambers or in some previous negotiation, before the trial?

9.30 p.m.

Baroness Scotland of Asthal: If I may, I will deal with the question asked by the noble Lord, Lord Hylton, first. The agreement over evidence can be reached at any of the times mentioned by the noble Lord. Noble

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Lords will know that, when the matter is committed, evidence is served by the prosecution, and it may be agreed that that is an appropriate way. As the trial continues, evidence may come up and the defence and prosecution may together agree that it is appropriate and pertinent that certain information goes forward. It would always be possible of course, if they were to make an application to the judge for the evidence of a witness to go in, for example, that the court could conceivably disagree with the balance. However, if both parties were to agree that would be unlikely to happen it would go in. Timing need not be a matter of difficulty.

The noble Lord, Lord Kingsland, spoke extremely succinctly to the amendments. In posing his questions, he asked a wide and broad question, so it is only right that I should give him a comprehensive answer.

Clause 93 goes to the heart of the new statutory rules on bad character and deals with the circumstances in which evidence of a defendant's bad character will be admissible in criminal proceedings. To set the context for the debate on these and subsequent amendments, it might assist the Committee if I say a few general words about this provision.

We have already had several useful debates, not least the one in the context of Clause 91, about the abolition of the common law rules on bad character and about letting the law stand as it is. Your Lordships will know that we do not believe that that would be an acceptable course to take. At present, the law is contained in a variety of forms that we touched on before the short adjournment, and, rightly, it was generally thought by all that amendment was needed. The difficulty and complexity of the current structure brought this area of law no credit, either to the courts and practitioners or to the public at large. An area of the law as important as this cannot be the preserve simply of experts. It may also have a chilling effect on the application of the law inhibiting the admission of relevant evidence even when this is appropriate and justified. Both Sir Robin Auld and the Law Commission have offered substantial criticism of the current state of affairs.

Leaving the law in its current state, therefore, is no longer an option. A new statutory scheme is required. The amendments relate to what form that statutory scheme should take. Therefore, our intention is to set out, as clearly as we can, a new scheme for admitting bad character, building on recognised concepts in the current law, but stating them in a comprehensive and coherent fashion—accessible to all and capable of straightforward application.

The scheme we propose consists of three key elements. The first is a new inclusionary rule that a defendant's bad character is admissible if it meets one or a number of conditions. The plethora of rules that have developed over the previous century or more, couched on an exclusionary basis and unclear in their application, inhibit the admission of this evidence, denying fact finders relevant material for determining the cases before them. That cannot be right. We must

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ensure that the framework for admitting this sort of information in the future facilitates, rather than restricts, the hearing of relevant evidence.

Therefore, our starting point is that the new scheme should be one of inclusion, which promotes the hearing of relevant evidence by the courts where it is appropriate and justified. We believe that it is right to place more trust in our juries and magistrates to reach common sense decisions on the basis of the widest range of relevant evidence, unless there are good reasons for exclusion in the circumstances of the case. The Bill sets out a new framework for the admission of a defendant's bad character, under which the basic rule is one of inclusion rather than exclusion.

The second element of the scheme is a number of categories of admissibility. The Bill sets out eight categories, which are intended to cover all evidence that might be relevant in a case and to provide a straightforward and clear statement of admissibility. They reflect evidence that is admissible or is admitted under current law.

Paragraphs (a) and (b) of Clause 93(1) cover circumstances in which the defendant is content for the evidence to be admitted. Such evidence is admissible at present. Clause 93(1)(c) covers important explanatory evidence. Common law also already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. I shall return to that shortly in the context of Amendment No. 141.

Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and therefore should be admitted, unless their probative value is outweighed by their prejudicial effect. We wish to make the new statutory scheme for evidence of bad character as straightforward and as accessible as possible. That presumption is intended to reflect the fact that, generally speaking, convictions for the same or a similar offence will be most relevant to issues in the case. Again, we shall have a chance to debate that more fully shortly.

Clause 93(1)(e) builds on current law, which enables evidence of a defendant's previous misconduct to be admitted where it is relevant to the question of guilt. It still takes more than 40 pages of one of the leading books, Cross and Tapper on Evidence, to describe the rules governing this area of the law. A clear restatement of the law is certainly needed. I do not want to play one-upmanship with the noble Lord's 15 pages of Archbold: he and I both know that Archbold may be the Bible, but others look elsewhere for the New Testament.

Paragraphs (f), (g) and (h) of Clause 93(1) cover matters that are dealt with by common law and the Criminal Evidence Act 1898. For example, in relation to co-defendants, a defendant may, under common law, adduce evidence relating to a co-defendant's bad character if it is relevant to his defence. A defendant is also entitled to cross-examine a co-defendant on his record under the 1898 Act if the co-defendant has given evidence against him.

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Evidence is also admissible under common law in cross-examination of witnesses and in rebuttal to correct any misleading claims made by, or on behalf of, the defendant to be of good character. Such a claim also means that the defendant can be cross-examined on his record under the 1898 Act. I know that many of those issues are very familiar to Members of the Committee. Finally, the 1898 Act also enables a defendant to be cross-examined on his record if he attacks the character of a prosecution witness. Paragraphs (f), (g) and (h) of subsection (1) make provision to cover similar circumstances in the future.

The third element of the scheme is a test for excluding evidence where admitting it would create unfairness; that is, its probative value would be outweighed by its prejudicial effect. This represents an important safeguard to protect the interests of defendants. It is not the only one included in the scheme and we shall have an opportunity at a later point to discuss others, such as those in Clauses 98 and 100.

We shall also have an opportunity shortly to debate in more detail the terms of the exclusionary test, so I will not take up much of the time of the Committee at this point. However, I mention it to provide noble Lords with a clear overall picture of the new rules governing a defendant's bad character.

To conclude, therefore, we believe that there is a wide consensus that the current law is unsatisfactory. Clause 93 represents a new departure with a comprehensive, statutory scheme that brings together all the rules in this area and restates them in a clear and coherent way. This will bring clarity to an obscure area of law, representing a better balance in the system than does the current complexity and uncertainty.

I turn now to the two specific amendments in this group. Amendment No. 140 inserts a general requirement that evidence of a defendant's bad character be of "direct relevance" to issues in the case. We do not agree that this would be a helpful addition to the Bill. It sets out carefully the basis on which a defendant's bad character should be capable of admission. All of these are circumstances in which the evidence will have a clear bearing on the case, either in assisting the defendant fully to put his case or in helping the jury to understand and determine the issues in the proceedings. That might be because it goes directly to issues relevant to the defendant's guilt or those that have a bearing on those issues by going to the defendant's character and credibility in appropriate circumstances.

A requirement for relevance is already clearly reflected in the various heads of admissibility where evidence is being admitted as probative to the issues of the case. It is explicitly mentioned in paragraphs (e) and (f) as evidence that is relevant to issues between prosecution and defence, or between co-defendants. Here, it is not clear what a requirement of "direct" relevance would add.

The issue of relevance also underpins the presumption created by paragraph (d) in favour of admitting convictions for the same or a similar offence. That

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provision is of course also subject to the exclusionary test in Clause 93(3), under which probative value will be assessed against prejudicial effect. However, to add a further requirement of "relevance" as a condition for the provision being met would undermine the clarity and simplicity of approach that this presumption is intended to achieve. I think that it was the noble and learned Lord, Lord Cooke, who said earlier in the debate that probative value is now the guiding principle, both in New Zealand and over here. We do not intend to change that because there still has to be an assessment of the probative value.

On the other hand, we think that the amendment is likely to cause confusion. In the case of explanatory evidence, for example, Clause 85 requires the evidence to be such that, without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case. Evidence in this category is not admitted because of its probative value to the issues in the case, but rather to put other evidence in its proper context so that it can be understood. Evidence can be admitted on this kind of basis under the current law, and it is not clear what a requirement for "direct relevance" would add in these circumstances, other than confusion over the proper reason for admitting this kind of evidence and questions of whether the evidence needed to meet some further requirement of being probative.

A requirement of direct relevance is also likely to add confusion where evidence is being adduced by a defendant who may wish to make a clean breast of his record at the outset to demonstrate that he is putting his cards on the table or to counter any presentational disadvantage in it coming out piecemeal in cross-examination.

A number of noble Lords will know the kinds of incidents to which I refer, particularly where a defendant says, "I wish to tell the court that I have these convictions. I have always pleaded guilty. I am not pleading guilty this time because I did not do it". It would be most odd if the court were to rule that the defendant could not present his case in such a way because his bad character was of insufficient direct relevance to the issue.

Difficulties might also arise in the context of evidence admitted to address a misleading claim of good character or in response to a defendant's attack on the character of another. These categories reflect circumstances in which bad character evidence is admissible under the current law and represent important categories for such evidence, ensuring that the jury receives a balanced picture of the character of the defendant where he seeks to give a misleading impression about himself or further his case through attacking a witness.

But it is not clear what additional purpose would be served by requiring the evidence also to be directly relevant. What additional requirement would this impose? It would be very odd if this evidence could only be admitted in these circumstances if it was also directly relevant to the defendant's guilt.

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The amendment reflects a concern that irrelevant bad character information should not be adduced. We understand that concern. Indeed, it is laudable. However, the Bill makes careful provision on the circumstances in which a defendant's bad character can be admitted. A blanket provision for "direct relevance" would cut across this and not aid clarity.

Amendment No. 141 would delete the provision for evidence to be admissible as "important explanatory evidence". The common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. For example, in the case of Sidhu ((1994) 98 Cr App R 59), the defendant was charged in relation to conspiracy to possess explosives in England. A video showing the defendant apparently leading the activities of a group of armed rebels in Pakistan was admitted as evidence of a "continual background of history". And in the case of Stevens ([1995] Crim LR 649), evidence of previous occasions on which the defendant had assaulted the victim was admitted as part of the background to a charge of murder.

As the Court of Appeal explained in the case of Pettman (1985 unreported):

    "Where it was necessary to place before the jury a continual background of history relevant to the offence charged, and that account would be incomplete or incomprehensible if not given in its totality, evidence forming part of that account should not be excluded merely because it established the commission of an offence with which the accused was not charged. A conclusion to the contrary, requiring events to be viewed in total isolation from their history, would make it difficult for the jury to do its job".

So, in terms of our current jurisprudence, there is already a vehicle through which such evidence can be admitted where probative.

However, the Law Commission identified in its 2001 report that there was considerable difficulty with defining the boundaries of this kind of evidence and that it was often confused and conflated with evidence admissible as part of the res gestae—that is, matters that are closely bound up with the facts of the offence in time, place or circumstance—and that admissible under the similar fact rule. It therefore recommended making clear distinctions between evidence to do with the facts of the offence, evidence admissible because of its explanatory value and evidence admissible because of its probative value. We have sought to reflect that division in the way in which we have crafted these provisions.

The Bill takes that opportunity and makes clear provision for evidence to be admitted where its value to the case is in helping the jury to understand the other evidence that is being presented. In these circumstances, it is difficult to describe the evidence as "probative" because, strictly speaking, it does not prove an issue relating to guilt, but sets other evidence in context. We believe that this should be separately recognised to avoid the confusion that has arisen under the current law. We do not, therefore, consider that it would be appropriate to remove paragraph (c). I therefore resist the amendments and invite the noble Lord to consider and withdraw them.

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I have tried to be as comprehensive as I can at this stage because I know we will be picking up various issues when we come to each specific section. I hope I will not have to repeat this, but I hope that it will help noble Lords to see the context in which we frame all the provisions and how they will sit.

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