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Lord Thomas of Gresford: My Lords, we on these Benches support the amendment and subsequent amendments dealing with the same topic. I entirely agree with everything that the noble Lord, Lord Kingsland, said.

The Government sometimes seem to forget that rules have been developed over centuries, out of experience, by lawyers and judges who are not necessarily liberal in the sense that we would recognise it on these Benches, but nevertheless are concerned with the protection of the individual, particularly in criminal cases. The rule that propensity should not be adduced in evidence to prove a criminal charge is deep within the common law of this country.

The Government are going entirely the wrong way about this. It would be fine if the Government's approach was to accept that it was for the prosecution

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to apply to a judge to say that previous convictions, or a particular sort of behaviour on the part of the defendant, should put be before the jury, and for the judge to consider that application and rule upon it—as happens frequently at the moment. Instead, however, they are adopting a reverse framework or mirror image of such a provision, whereby it is for the defendant to raise the issue whether his convictions should go before the jury and it is for the judge to make a ruling on that. That applies not only to jury trials but to trials in the magistrates' court as well. As practitioners know, there is a considerable difference between an application made by the prosecution for leave to adduce evidence and applications made by the defence to prevent evidence being introduced. For those reasons, we support the amendment.

5.15 p.m.

Lord Ackner: My Lords, I support the amendment with more than that thin veneer of that superficial confidence that characterises most of my interventions. I do so because I have the Lord Chief Justice and all the judges of the Court of Appeal Criminal Division on my side. I refer to the memorandum deposited in the Library. The position is put quite typically in paragraph 13 on page 4, which states:

    "The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".

That is, in substance, my overall basis for supporting the amendment, which has the imprimatur of the very detailed and lengthy report produced by the members of the body referred to, all of whom are extremely distinguished in their fields.

Lord Alexander of Weedon: My Lords, I add a word of support for the amendment. This is one of the most important points in the Bill. My noble friend Lord Kingsland suggested that many of the Government's proposals turn on their head the normal principles of criminal law. The principle that I was brought up on was governed by the particular thread that evidence should be admitted only if it was more probative than prejudicial. The Government's proposals do not stand that test.

I was watching television on Sunday morning when the noble and learned Lord the Lord Chancellor was asked about the matter by David Frost. He said that in taking decisions about people, we take account every day of our judgment about their characters and track records. For me that is too broad brush.

As the noble Lord, Lord Thomas, said, we are dealing with a specific area of human life—the criminal law—in which we have long taken the view that it is important to have specific and circumscribed rules of evidence. In part, that is affected by our ambivalent approach to juries. We would all retain the jury system for serious offences, but we do not

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completely trust the system in the way it operates. We do not invite juries to give reasons, and many people would be horrified by the reasons that juries could give. Equally, we have always been careful to ensure that we do not put before juries material that might prejudice them but which did not have full evidential value. That principle should be fully maintained.

The balance is obviously not easy to strike, and I understand why the Government are looking for a wider approach. We all know of cases in which juries have acquitted and have then been outraged and distressed to hear that the accused has a string of convictions for similar offences. I do not believe that that is comfortable to any of us, but for me it does not justify tilting the balance so decisively the other way and running the risk that the accused will be damned by his past, even when the strict evidence of the offence is not strong enough.

The noble and learned Lord, Lord Ackner, put the views of the judges. I return to the views of the institutions and organisations that are concerned to uphold, and experienced in upholding, the law. I refer to the Law Society, Justice, of which I am chairman, and the Bar Council. I shall content myself simply with quoting the evidence of the Legal Action Group. When considering the Government's proposals, the group said that they would,

    "allow evidence of the defendant's bad character to be admitted more readily".

That is absolutely indisputable. The LAG continues:

    "This may result in encouraging the police to focus investigations on people with previous convictions. We also believe that fact finders will be heavily influenced by information about previous misconduct, and that the presumption of innocence will be undermined".

That makes good sense to me.

We all recollect the damage that can be done to our system of law if it is shown to be unfair, and if there are wrongful convictions. We should give effect to the careful considerations of the Law Commission and think long and hard before we go further than that.

Lord Clinton-Davis: My Lords, I rise to express my reservations about what the Government are doing. The noble Lord, Lord Alexander, cited a number of organisations that have expressed at least some reservation about the Government's proposals. At worst, they have expressed hostility to the proposals. I therefore ask my noble friend, and she is a friend, what consultations have taken place with them? What have the Government done? The reservations which they have expressed are not likely to be conceded. Many practitioners also have expressed their concern to me. As a former practitioner myself, I am very concerned about what the Government are doing.

The noble Lord, Lord Alexander, has expressed in very clear terms the reservations of all those organisations. I cannot find anyone other than the Government and perhaps one or two others who support the conclusions that have been reached. The organisations cited include many of those who practise the law day in and day out. It is therefore incumbent on

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my noble friend to consider what they have to say. It is a long time since I practised criminal law myself. My last case was in 1984, so it has been quite a long time. However, I think that the burden here rests very heavily on those who wish to change in a very marked way the law as it has stood for a very long time.

So I think that at the very least, between now and the next stage of the Bill, all the organisations that have expressed doubts about what the Government are proposing to do ought to be seen. Every one of them includes people with a direct knowledge of the law and how it operates. They represent people who defend people charged with crimes. They represent people who are concerned about the development of the law. It is therefore incumbent on my noble friend to convince not only those who have been against the change that the Government propose but also those who are concerned about the state of the law and what it should stand for in a democracy. It is very important that she should see them and try to convince them, if it is possible, that they are wrong. I think that she will not succeed.

Lord Carlisle of Bucklow: My Lords, I support wholeheartedly every word said by my noble friend Lord Alexander of Weedon and also what has been said by the noble Lord, Lord Clinton-Davis. We discussed this matter at length in Committee. I do not propose to repeat what I or others said on that occasion. However, I think that I may have one new comment.

The Bill as drafted allows,

    "evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged",

to be put in evidence by the prosecution. I have no doubt that the Minister will say, "Yes. However, although it does not say that it is necessary to obtain the leave of the judge before putting any such evidence before the court, the defendant can make an application under Clause 84(3) that the court must not admit it if there is an application by the defendant to exclude it". So it will be admitted unless the defendant makes an application.

As has been said already, the Bill applies to the magistrates' courts as well as the Crown Courts. Many defendants are unrepresented and will not have knowledge of the fact that they have a right to make an application to exclude evidence that is about to be given. As noble Lords will know, once any evidence of a person's character is before a court it is inevitably bound to influence the court's views of his guilt or innocence of the offence with which he is charged. I do not think that it is sufficient to have a protection of that nature.

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