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Lord Thomas of Gresford: I support the observations of the noble and learned Lord, Lord Ackner. We find the whole of this clause objectionable for the reasons mentioned also by the noble Lord, Lord Kingsland; that is, it is now inclusive rather than exclusive. We also feel that had it not been for the alarums of this morning, we would have been in a position to move Amendments Nos. 143A to C, which deal with some of the points raised by the noble and learned Lord. The whole of the drafting of this clause is objectionable in principle. Accordingly, in due course we on these Benches shall carefully consider it on Report.

Lord Renton: I too support the views of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford. The Government should seriously reconsider the whole of Chapter 1 in Part 11. Clause 93 has been criticised so much and is so difficult that I believe the Government should consider replacing it or leaving it out altogether.

The expression "bad character" is not defined in the Bill. It is a very vague, wide expression. Opinions differ as to what is bad character. Some people condemn natural behaviour, which is not very serious, as bad character. In any event, we should bear in mind that this clause will apply not only to deciding whether or not the accused is guilty; if he is found guilty, it will also be relevant to sentence. Therefore, vast prejudice could result. I hope that the Government will, as has been suggested, reconsider this clause and either replace it or do away with it altogether.

Baroness Scotland of Asthal: I shall come straight to the questions asked by the noble and learned Lord, Lord Ackner, in terms of understanding why we differentiate between the specific subsections outlined in Clause 93(3). Clause 93(1)(a) and (b) both concern instances where the defendant seeks to adduce evidence in pursuance of his or her own defence. We have taken it that it would be proper for that evidence to be so admitted.

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Clause 93(1)(c) covers important explanatory evidence. As noble Lords will know only too well, the common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. We touched on that in an earlier debate. It is quite difficult to describe this evidence as probative because, strictly speaking, it does not prove an issue relating to guilt but sets other evidence in context. Therefore, seeking to admit this evidence —

Lord Thomas of Gresford: Does the Minister not agree that although it may be admissible explanatory material as she has explained—she has previously led us to the case law on that—there is still a discretion for the court to exclude evidence on the basis that its probative value is less than its prejudicial effect? Why is there the change here?

Baroness Scotland of Asthal: We believe that if we are setting up a statutory new scheme we have to have a certain precision with language. One of the main criticisms of our past rule was that it lacked precision and clarity. We are seeking to imbue the Bill with precision and clarity. In arguing to not include such evidence, we are really saying that we are seeking to admit this evidence under Clause 93(1)(c) in a separate category. Historically, there has never been a disaggregation between evidence which is included as background and that which is included as bad character. In this section we are seeking to disagreggate those two elements, which have hitherto been conjoined.

Therefore, because of that difficulty, we are seeking to admit this evidence under Clause 93(1)(c). Seeking to admit the background evidence under Clause 93(1)(e) would perpetuate difficulties that the common law has encountered. Instead, we believe that that evidence should be separately recognised and admissible. So Clause 93(1)(c) therefore 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.

Clause 93(1)(d) is subject to Clause (93)(3). I give way to the noble Lord, Lord Kingsland.

Lord Kingsland: I apologise to the noble Baroness. As usual, she is extremely courteous in giving way. Before she leaves (c) perhaps I may make an observation about the relationship between precision and discretion in legislation. The noble Baroness lamented the lack of precision in this branch of the law. I suggest that the reason why it may appear to lack precision is because this is an area which has pre-eminently fallen within the discretionary power of criminal judges. They have had to consider a long line of issues on the facts and draw conclusions from them.

The noble Baroness now seeks to give more precision; but in doing so is removing the discretion that the judges used to have. As the noble Lord rightly said, under subsection 1(c) the judge will no longer have the discretion to exclude. So of course the legislation will have more precision in that respect.

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However, with the greatest possible respect to the noble Baroness, I suggest that that is a substantial reduction in the rights of a defendant in a criminal trial. In a country which has always prided itself on those rights, I view that as a serious threat to what has been guaranteed over many decades, and in some cases centuries, by the common law.

Lord Thomas of Gresford: To avoid the Minister replying straight away, perhaps I may add to that. We are referring to evidence of bad character. Subsection (1) starts by referring to admission of evidence of bad character. It may be that such evidence is admitted because bad character is explanatory material, but there is a clear discretion at present for the judge to exclude that if its prejudicial effect exceeds its probative value.

The result of the way in which this clause is drafted—the Minister's reply suggests that this has not been thought through—is that there could be evidence of bad character, which is only background material but is admissible even though its prejudicial effect is much greater than its probative value as explanatory material. That cannot be right or fair. Unless this is amended and reconsidered, it must be excluded under Article 6.1

1.30 p.m.

Baroness Scotland of Asthal: I do not agree. Clause 94 sets out what falls within the category "important explanatory evidence". A judge hearing and dealing with the case will be able to determine whether the evidence on which the prosecution seeks to rely can properly fall within the definition of "explanatory". Clause 94 states:

    "For the purposes of section 93(1)(c) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial". It is perfectly possible for defending counsel, exercising his duty—as he must—to say about an application by the prosecution for the submission of evidence that falls within this category—Clause 93(1)(c)—that the evidence upon which the prosecution seek to rely falls outwith the definition in Clause 94(a) or (b). That is a proper argument that can be made on behalf of the defence. If the court feels that the evidence cannot be included and that Clause 94(a) and/or (b) is not satisfied, of course it is still open to the judge to exclude it.

In pursuance of the suggestion made by the Law Commission, we have tried to get some clarity, some certainty about the way with which these matters are dealt. That is the rationale behind the disaggregation that I have just outlined.

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The judge's responsibility—be he lay or professional—to manage the case in accordance with those rules and in accordance with fairness and justice is absolutely plain and contained and referred to in the provisions.

Lord Thomas of Gresford: I—

Baroness Scotland of Asthal: Perhaps I may continue. I hope I have answered the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. We have gone through the matter on several occasions. I should be most grateful if I could continue this section and finish answering the noble and learned Lord, Lord Ackner. Then of course I shall give way and answer any questions that noble Lords may wish to ask. It would be a courtesy to me if I could just conclude this part.

Clause 93(1)(f) states that the evidence is admissible if,

    "it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant".

There is the direct reference to probative value. One therefore does not need the refutation upon which one subsequently has to rely in Clause 93(3).

The other issue is on Clause 93(1)(g). Evidence under paragraph (g) would be rebuttal evidence to be called in order to disprove, or to set in the right context, evidence put in by the defence, which the prosecution seeks to rebut.

Lord Carlisle of Bucklow: In dealing with Clause 93(1)(c)—the words "important explanatory evidence"—the Minister said that it would be the duty of defence counsel to object when an application was made by the prosecution to introduce such evidence. There is no longer a requirement on the prosecution to apply to put in such evidence. Clauses 93 and 94 do not require the leave of the courts, as I understand it, for the introduction of that evidence. So when the noble Baroness says that it is the duty of defence counsel to object, when the prosecution makes an application, she is, I say with great respect, mistaken on the effect of the clauses.

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