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Lord Thomas of Gresford: I hope that the Committee will permit another Queen's Counsel from north-east Wales to speak. I note that the noble and learned Lord, Lord Williams, is standing behind the Bar. Perhaps he will speak on this matter. It is fundamental to the criminal justice system of this country that there is a presumption of innocence. That is where we all start from—that an offence has to be proved by the prosecution to the satisfaction of a magistrate or a jury.

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If you introduce irrelevant past convictions into the equation, is it to be supposed for a moment that the presumption of innocence is the same for a man with those previous convictions as it is for a person of completely clean character? Of course, it is not. When you introduce something like that to distort the criminal justice system as it has grown up there will be miscarriages of justice. There have been so many well-known miscarriages of justice in this country over the past 10, 15 and 20 years that the confidence of the public in the investigation and prosecution of crime has been shaken. I am sure that my noble friend Lord Carlile of Berriew may have had the same experience, but, over the period of my professional life, I strongly suspect that acquittals are more readily to be obtained, particularly in certain parts of the country where miscarriages of justice have taken place because confidence in the police and in the investigation of crime and in the fairness of prosecutions has been undermined. Once you do that, you are hitting at the very root of justice.

We shall no doubt discuss the subsection in some detail at a later stage but noble Lords on these Benches wholeheartedly support the amendment.

10 p.m.

Lord Renton: I must point out before coming to paragraph (d)—the subject of the amendment—that it is in Clause 93(1), which refers to criminal proceedings in general. It does not make any distinction between those proceedings that decide guilt or innocence and those relevant to deciding on the sentence. That should be made clear. It could be quite easily done; we could have words at the beginning such as, "When deciding whether the defendant was guilty or innocent of the offence charged". What follows would be made clear, because on sentence we of course already have evidence of any previous convictions.

Paragraph (d) would be utterly unacceptable in achieving justice, and I warmly support what my noble friend said a little earlier. We get into a very confused situation if we do not regard the whole of subsection (1) as needing redrafting. When deciding innocence or guilt, we must stick to the present well-established system, which has achieved justice time and again.

Lord Carlile of Berriew: I agree with what has been said, particularly with the reasons given by my noble namesake about the importance of the principles at stake. If one reads Clause 93(1)(d) alongside Clause 95, as one must, it seems that a fundamental change is made by the provisions.

We have been using the noble and learned Lord, Lord Williams of Mostyn, as our template. Indeed, my noble friend Lord Thomas of Gresford and I have had the advantage of doing cases with and against the noble and learned Lord when we were all very much younger. I can almost hear the noble and learned Lord protesting to a judge, "But, my Lord, that only goes as to propensity. It is not evidence of the crime charged". The provisions, especially subsection (1)(d), make a presumption that evidence of propensity is evidence of

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guilt of the crime charged. That is the absolutely fundamental change made here. It is a very dramatic change in the law.

The Minister cannot get away with trying to persuade this House—particularly this House, where there is a lot of experience of conducting criminal cases, which continues for many of us—that this is no more than a simplification or codification of the existing law to make it more comprehensible to ordinary people and juries. It is not. The Bar certainly does not think it is, and nor do solicitors. I am quite sure that the judges are as outraged as we are about it, and it promises immense and amoral complexity to the law.

Baroness Seccombe: I did not intend to speak in this debate, but it brought to mind an occasion when I sat as a magistrate on which we had been through all the formalities when a defendant was accused of theft from a shop. We came to the first witness—the owner of the shop. Having pointed out the defendant—the person connected with the offence—he was asked what drew his attention to the lady, to which the answer was, "I had seen her do it before". There was absolute consternation in the court, and the whole case was adjourned and had to be heard by another Bench. How glad I was, because it is so wrong that anyone, whether jurors or magistrates, should know about previous convictions.

Lord Mayhew of Twysden: The Minister was having a pretty torrid time tonight and conducted herself with her usual coolness, sang-froid and courtesy, but would she be good enough to say what the reason is for the change? Is it, as we were given to understand earlier, in order to make simple what is at present complex, or is it something else and if so, what?

Baroness Scotland of Asthal: I say straightaway that I understand the anxiety that has been expressed about the new change. I may not share it, but I understand it, because any time one embarks on what appears to be a significant change from that which is known, loved and accepted, it provides us all with a challenge. I empathise with the statements made thus far, but I would like to respond directly to some of the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew—this was touched upon by the noble Lord, Lord Carlisle—about the reason for the changes being made, and to seek to answer the noble and learned Lord, Lord Mayhew.

The changes have not been made in order to generate more convictions for convictions' sake. The Government are as committed and as passionate about justice as any who have already spoken in the Chamber. However, it is right that we want to bring more people to justice justly and fairly. It would be wrong to fail to recognise that there is the perception outside the Chamber that we have not been able to get the balance just right and that many do not understand what our rules are, not least because of the way in which they have developed over a period of time—we

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explored that earlier in debates—and because we have had fragmented development, which has not always been easy to follow. We are making a genuine attempt to put those provisions in one place to make them accessible.

I have listened with great care to everything that has been said, not all of it with the temperance with which I would perhaps have been more comfortable, but I understand the passion of those saying it. Passion, quite often, is the odd bedfellow of temperance. While I understand that, it would be quite wrong and unjust to accuse the Government of seeking to rebalance the system in a pernicious and unfair way. That is not what we intend.

If noble Lords would care to do the exercise that I have sought to do, by going through each and every provision, they will be comforted to find that there is already authority supporting virtually all that is in Clause 93. However, it is right that in Clause 93(1)(d), the Government are making an attempt to broaden the issue a little further. Amendment No. 141, tabled in the name of the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, and spoken to so ably, as always, by the noble Lord, Lord Kingsland, would test the issue a little further. I have spoken in general terms about the new scheme.

Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and should therefore be admitted, unless their probative value is outweighed by their prejudicial effect. I know that sometimes, for the purposes of the beauty of the argument, it is almost convenient to forget about Clause 93(3), but we really should remember it because it is that which speaks of probative value. I take this opportunity to remind Members of the Committee of it because it states:

    "The court must not—

therefore, we have a mandatory provision—

    "admit evidence under subsection (1)(d)"—

about which we are now talking—

    "(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

As I said earlier, that drafting of Clause 93(3) is drawn directly from Section 78 of PACE. The drafting has already been considered and interpreted to include the test in the common law under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in this way and will be clear, rather than adopting a new form of words which may cause confusion.

Therefore, to be read into Clause 93(1)(d) is that nothing that falls within that category could or should be admitted unless it complies with the injunction set out in Clause 93(3)—that is, its probative value should outweigh its prejudicial effect. That is a principle with which we have all been comfortable for a very long time and have become increasingly so as the jurisprudence has developed.

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I believe it would be quite unjust, even if one were to differ on whether it is right to go one stage further, as Clause 93(1)(d) appears to do, to say that that is for some pernicious or ill intent. It is not. The court still has the ability to hold burden.

However, I do not believe that we should run away from the idea that the things included in Clause 93 do not already impinge on the way in which our courts operate. They are an expression of the jurisprudence which we all respect and by which, if we are practitioners, we are bound.

As I said, the test is designed to reflect the existing position. Therefore, Clause 93(1)(d) and, indeed, our intention in including it in legislation is to create a presumption that certain convictions are relevant and should be admitted. That would not be conclusive but would provide a clear starting point for admissibility that reflects the reality of the operation of the similar fact rule.

I am aware that a separate amendment has been tabled specifically to limit this clause to convictions for the same offence and to remove the inclusion of convictions for a similar offence. That is Amendment No. 143 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay, who I see nodding her assent. Although that amendment is in a different group, the amendment that we are considering—Amendment No. 142—would remove the admissibility of a conviction for both the same offence and a similar one. Therefore, perhaps I may say a few words about similar offences.

The case for extending this provision to convictions for similar offences is strong. Their probative value may be just as strong as convictions for the same offence—for example, if someone has previously committed actual bodily harm, the fact that he had previous convictions for grievous bodily harm should be admissible just as readily as a previous conviction for actual bodily harm. That is the case as the probative value lies not in the fact that the defendant committed that particular crime but in the nature of the offence. In this case, the probative value lies in the violence of previous offences.

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