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Baroness Maddock: My Lords, I support the noble Baroness. We have failed to convince the Government on the issue. It is disappointing that, during the progress of the Bill, the Minister tried to mollify us on one of our concerns, which was that local authorities that, we believed, had housing need, would have money taken away from them. The Minister said that if there really was housing need in those authorities, the money would go back to them. What a way to do it. If I read the figures correctly, some of those authorities from which the Government plan to take away a large amount of money will be giving quite small amounts of money back to the Government. If the Government then decide that they have housing need, they will send that money back again. That seems to take bureaucracy to an incredible level and to be really rather unnecessary.

The Government certainly win accolades for setting up new bureaucracies, and that scheme will end up being another example. I do not know whether the Minister will be able to reassure us on the issue or whether he will report back to us at any stage on what happens to that money.

It is particularly sad to see that provision in the Bill. So many freedoms have been given to local authorities. We all agree that we want to see local authorities being able to operate freely to do what they think is right in their areas. However, so much bureaucracy has gone with some of those freedoms. That is incredibly disappointing, and we have another example before us.

Nevertheless, I am not a lawyer, and I have to abide by what others say must happen in this place. We will have to accept the Commons amendment, but I hope that the situation that I fear will not happen. It would be a waste of central and local government's time.

Lord Rooker: My Lords, I appreciate that the noble Baronesses are still annoyed and disagree with this part of the Bill but will not take their opposition any further. I shall make two brief points to set the record straight.

First, I realise that we have argued about the amount of money involved, but as I said yesterday, the amendment sent by this place to another place and rejected would have removed the set-aside arrangements that already exist. The amount of money involved is 1.2 billion, not simply the 120 million for debt-free authorities.

Secondly, we are told that we will receive no thanks from local government. We are not looking for thanks; we are looking for partnership and goodwill. Everybody is aware that the major and substantive changes that the Bill brings about in the financial arrangements for local government, which we all want

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to see operating from the start of the next financial year in April, cannot take place unless the Bill receives Royal Assent today—not tomorrow nor next month. If it does not receive Royal Assent today, those changes, as was pointed out by the Minister last night, cannot come into force until April 2005, not 2004, which is what we all require. It is absolutely crucial that Royal Assent is given today.

It is a free country; it is still a free House. Noble Lords can send the Bill back if they wish and the Commons can have another look at it. They have chosen not to do that, which is sensible in the circumstances. Their arguments have been put on record. The Government will be thoroughly accountable for the mechanism that we use in Clause 11. Parliamentary Questions and debates will elucidate exactly what happens with pooling and the way in which the money is distributed. It is not as though nobody will be able to find out what exactly the Government do in implementing the legislation.

On Question, Motion agreed to.

Criminal Justice Bill

12.54 p.m.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

Clause 93 [Defendant's bad character]:

[Amendments Nos. 143 to 143C not moved.]

Lord Kingsland moved Amendment No. 144:

    Page 62, line 29, at end insert "nor if the potential probative value of such evidence is so outweighed by its prejudicial effect"

The noble Lord said: We have already expressed our view about the importance of including a requirement of relevance in Clause 93. We have also expressed our support for a general rule excluding bad character evidence, subject of course to exceptions, rather than a general inclusionary rule, as favoured by the Government, subject to a discretion to exclude. Therefore, I shall not return to those topics in my remarks in support of Amendments Nos. 144 and 145.

On Amendment No. 144, which states,

    "nor if the potential probative value of such evidence is so outweighed by its prejudicial effect",

I need do no more than remind the Minister of her speech in your Lordships' House, last Monday in Committee, at col. 752 of Hansard:

    "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

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    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".—[Official Report, 15/6/03; col. 752.]

If that is so, can I take it that the Minister is quite content with the terms of Amendment No. 144? There could be no harm, but positive benefit, in including it in the Bill if that is the jurisprudence which has already been developed by the courts.

Amendment No. 145 would define the expressions "probative value" and "prejudicial effect". It is clearly set out in the Marshalled List. In the interests of brevity, I do not feel it necessary to express any further views about each item in that amendment at this stage. I beg to move.

Baroness Scotland of Asthal: I shall adopt the noble Lord's telegraphic style and say in answer to him on Amendment No. 144 that less is more. Our position is expressly set out. The statement to which the noble Lord referred set out the Government's position, and it was clearly expressed. We stand by that as our proper interpretation. Further amendment to the drafting of the Bill is therefore not necessary. The noble Lord will know that the comments that I have made, and, I hope, the clarity with which I have expressed our understanding, should be capable of being used for interpretative purposes, so as to avoid any difficulty arising on another occasion. Unless the noble Lord wishes me to elucidate further—I assure him that I have at least 20 minutes' worth of argument—I do not intend to respond further.

Lord Kingsland: I have only one observation to make on what the noble Baroness has said. I entirely accept that the courts have implied in the relevant section or paragraph of PACE that the probative, prejudicial test applies. However, PACE serves a different function in our criminal law from the function that Clause 93 is intended to serve.

It is conceivable, therefore, that despite the interpretation of PACE in the way the Minister suggests, there might still be a danger that a court would take a different view about the same expression in the context of Clause 93, in particular, and the Bill in general. I, therefore, see no reason why the Minister, if she is so confident of the interpretation she expressed last Monday, should not be prepared to put the expression on the face of the Bill.

1 p.m.

Baroness Scotland of Asthal: Perhaps I should add a few more words in the hope that that might satisfy the noble Lord. I shall try to reassure the Committee that the concerns behind the amendment are misplaced. That is because, as the noble Lord has demonstrated, there is little difference between us in terms of the substance. It is our intention that the test should consist of a balance between probative value and prejudicial effect and it may help if I make this point absolutely clear.

The test for the court to apply under Clause 93(3) as it stands is designed to reflect the existing position under the common law, as Section 78 of the Police and

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Criminal Evidence Act 1984 does, under which the judge balances the probative value of the evidence against the prejudicial effect of admitting it and excludes the evidence where the prejudice exceeds the probative value.

The Government's intention is for the courts to apply the fairness test in this legislation in the same way and this is the intended effect of the clause. In applying the test to evidence admissible under Clause 93(1)(d), the court will balance the probative value of the convictions—that is, the extent to which they are relevant to the issues in the case—against any prejudicial effect of admitting them.

The question therefore is one of drafting. The current wording draws on that adopted in Section 78 of the Police and Criminal Evidence Act 1984 and is therefore a statutory formulation with which the courts are already familiar. Case law has clearly established that that section encompasses the common law power to exclude evidence whose probative value is outweighed by its prejudicial effect. We consider it desirable to have on the face of the legislation a familiar test that achieves our intention, rather than introducing new language.

On the other hand, the amendment would introduce a new statutory formulation. This would, no doubt, give rise to lengthy arguments as to what exactly the test is intended to be. Both the noble Lord and I know of the ingenuity of the Bar of England and Wales, and the delight which many have in testing and teasing out these differences.

To give one example, the wording of the amendment states that,

    "the potential probative value of such evidence is so outweighed by its prejudicial effect"

that it ought not to be admitted. The words "so outweighed" would doubtless prompt a great deal of case law and uncertainty as to its meaning. Does it mean that the prejudicial effect simply outweighs the probative value? Or must it outweigh it to a certain degree? If so, by what degree is it acceptable for the prejudicial effect to outweigh the probative value before it is excluded? Such debates would be highly undesirable and we believe it is far better to pursue a well-established and well-understood test.

I hope that that explanation will suffice. If the noble Lord wishes me to go even further, I am happy to do so.

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