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Lord Lloyd of Berwick: My Lords, I thought that the Minister was reading from passages in the report where the Law Commission described defects in the present law.

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5.45 p.m.

Baroness Scotland of Asthal: My Lords, I was dealing with the point made by the noble Lord. He said—I shall be happy if he disavows it—that the Law Commission was suggesting that propensity per se should be excluded. It was clearly not doing that. That was my point.

The definition in proposed new Section 82A is almost identical to that recommended by the Law Commission and which also appeared, in substance, in the Bill prior to amendment in Committee. There are two minor differences.

The first is structural. The Law Commission preferred to include evidence of the facts of the alleged offence, and evidence of misconduct in its investigation or prosecution, within the meaning and definition of evidence of bad character. Most straightforwardly, such evidence would include in a burglary, for example, the evidence of eyewitnesses, forensic evidence and the like. Clearly, that is the central evidence in any case, and the Law Commission proposed that leave should not be required before it was adduced. The Government considered it more straightforward to say that such evidence simply did not come within the definition. However, the effect is the same: it is admissible without leave.

The second difference is more significant and reflects a difference between the proposal in proposed new Section 82A and the Law Commission, not between the Government and the Law Commission. The commission proposed that evidence that tends to show that a person has committed an offence or behaved in a particular way should be capable of admission. The intention was to cover evidence from which it could be inferred that a person had acted in a particular way, rather than that which showed it directly. In our view, that might include evidence on charges for which the defendant is concurrently being tried or for which the defendant has been acquitted. Such evidence is currently admissible, and we believe that it would be a grave mistake to suggest that it would not be admissible in the future.

It may be, in fact, that such evidence will be capable of admission under the definition as a whole. However, it is far from clear, and the omission of the words proposed by the Law Commission is likely to be seen as significant. The Government are, however, fully aware of the concerns that the definition has caused, which were explored fully in Committee. We are therefore willing to look carefully at how we define such evidence, to ensure that the Bill is apt to catch all evidence that should be subject to the rules in this part of the Bill—in particular, evidence which should properly be capable of admission—but does not include evidence which is too remote.

I hope that I can deal briefly with the provisions on evidence of a non-defendant's bad character. On those, there are no differences of substance between the Government and the Law Commission scheme. There is a slight structural difference, so that what appears across four sections in the amendment is dealt with in a single

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clause in the Bill. We believe that that approach is more accessible. However, the circumstances and tests for admissibility are the same.

I shall turn to the admission of a defendant's bad character. The Government's proposals have been drawn substantially on the Law Commission's work and recommendations, although adopting a slightly different structure. For example, with one exception to which I shall return, the categories of admissibility set out in Clause 84 all appear in the Law Commission scheme. Both schemes apply a test that involves the weighing of the probative value of the evidence against its prejudicial effect in determining whether it should be admitted. There is no dramatic change in the law there.

Much of the subsidiary material in Clauses 85 to 90 relating to the various categories of admissibility is drawn from the Law Commission's proposals. Examples are proposals on what should constitute explanatory evidence, the restriction on a defendant's adducing a co-defendant's record in relation to credibility, and the circumstances in which a defendant might give a false impression of himself that triggers admission of his record.

Noble Lords will also see that proposals made by the Law Commission on a range of procedural matters have been adopted. Those include: stopping the case where evidence is contaminated, in Clause 91; the assumption of truth when assessing relevance, in Clause 92; the court's duty to give reasons, in Clause 93; and the proposal for rules of court, in Clause 94. Indeed, the only proposal not adopted here relates to the question of severance. However, the test for the court to apply under the Law Commission's proposals does not differ substantially from that which applies under the common law and which will continue to apply.

It is also clear, however, that there are substantial differences between the Law Commission's proposals and those in the Bill. Perhaps the most significant of them is in our general approach to admission. The Law Commission's proposals are based on exclusion, but the evidence should not be admitted until a number of hurdles have been overcome. That was highlighted by the noble Lord, Lord Thomas of Gresford. It is evident in the requirement that leave must be sought, and an enhanced test of relevance must be satisfied that evidence is not considered admissible if it does not pass an interests of justice test.

We know that proponents on one side say, "Everything in the clause is already in the jurisprudence, so it is not needed". On the other side, they say, "If everything is there already and we are not doing much other than extending it, why do the Government object to it being codified?". We need to signal that there has been a change, and the question is how we are to do that. It is our view that a more targeted approach is required, one of inclusion that makes it clear that relevant evidence is admissible. The law should therefore make it clear that the test should be whether the evidence is relevant, and then whether it should be excluded.

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The prosecution must still show how the evidence is relevant to the case—that is, why it falls within one of the categories set out in Clause 84. Once it has done so, we believe that it is right to place the onus on the defendant to say why the evidence that the court has found relevant should be excluded. That is the case with all other relevant evidence that the prosecution wishes to adduce.

We therefore stand firmly behind the inclusionary approach adopted by the Bill. However, we recognise that there is a practical question of ensuring that defendants are aware in advance that their record might be put in evidence, an issue touched on by the noble Lord, Lord Carlisle of Bucklow. That will enable an application to exclude to be made to the judge, to ensure that the court is in control of the admission of the evidence in those circumstances, as is appropriate. We are therefore prepared to consider whether a formal notice requirement should be introduced to meet the need.

Part of the drive for clarity and transparency, and ensuring that relevant evidence is admitted, is covered in Clause 84(l)(d), allowing a person's record for similar offending to be heard by jurors and magistrates. We shall have an opportunity to debate the matter more fully in a little while, but it was not part of the Law Commission recommendations and I therefore also mention it here. The provision is intended to create a presumption that the courts should hear of similar convictions of the same person. However, it is not intended that evidence should be admitted if too remote to have any probative value. That is why the category is subject to the exclusionary test in Clause 84(3).

We think that that is an important part of shifting the emphasis towards admitting evidence that is relevant unless it is not safe to do so.

Lord Clinton-Davis: My Lords, I asked my noble friend whether she had consulted the organisations mentioned by the noble Lord, Lord Alexander. She has not referred to that. She may be coming to it; I do not know. If not, why not?

Lord Thomas of Gresford: My Lords, as the noble Baroness is dealing with the matter at the moment, I shall take the opportunity to ask whether she accepts a statement in the letter of the noble and learned Lord the Lord Chancellor, dated 16th December 2002, to the Joint Committee on Human Rights. He said that, in the case of convictions,

    "the starting point is that these convictions will always have some relevance to the issues in the case and it therefore creates a presumption in favour of their admission. However, this is not absolute and is subject to the discretion to exclude on the basis that prejudicial effect outweighs probative value".

She said it would be excluded if there were no probative value, but the noble and learned Lord the Lord Chancellor said it would be excluded if the prejudicial effect outweighed the probative value. Does the Minister accept that?

Baroness Scotland of Asthal: My Lords, I do and that is why I invite noble Lords to look at subsection

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(3). It states precisely that. That is why Clause 84(3) is subject to the exclusionary text. The first question is: has the Crown satisfied the judge that it is relevant evidence? If it is relevant evidence, it should go in unless and until one looks at Clause 84(3), which asks whether it is more probative than prejudicial. Here the court gets the opportunity to have its say.

In relation to the comments made by my noble friend Lord Clinton-Davies, noble Lords will know that through the process of the Law Commission Bill and this Bill there has been wide-ranging consultation. Indeed, as I am sure the noble Lord, Lord Alexander, will say, there has been vigorous lobbying in relation to all these matters. They have been taken into consideration not least because we have had the benefit of their being discussed in some depth in your Lordships' House. I know that our officials have had the advantage of responding. I cannot give the noble Lord a list of all those occasions, but I hope he will accept that we have had a fair opportunity to have recite of what the organisations have said and we have had a fair opportunity to have our say.

We recognise that concerns have been expressed both here and in another place about how the clause operates. We are therefore prepared to look further at the issue to see whether we might achieve our aims in another more acceptable way.

I want to highlight two further differences between the proposals in the Bill and the Law Commission's recommendations. The first relates to the defendant's shield. At present, this is lost if a defendant attacks the character of a witness. In those circumstances, evidence of his own record is admissible. The Law Commission proposes that this should be restricted so that only certain attacks trigger the loss of the shield. We do not believe that that is right—it is not what happens at the moment and we believe that it would be unjust to make the change.

Under the Law Commission's proposal, a defendant would be able to accuse a witness of lying or fabricating evidence without losing his shield. So the defendant would be able to do that with impunity. Such attacks should not be capable of being made with impunity. If they are, we risk exposing witnesses to far more frequent attacks in the courts, which will have the further effect of deterring people from coming forward to give evidence. The Bill's proposals, on the other hand, retain the full protection of the current law.

We have also restricted the categories to which the exclusionary test applies. We do not believe that it has a particular role to play, for example, in respect of explanatory evidence (Clause 84(1)(c)); or evidence to correct a false impression (Clause 84(1)(g)), where we have adopted different safeguards. In the case of explanatory evidence, that is already admissible under the current law and is indeed admitted even where it might be thought to be highly prejudicial; for example, evidence of sexual offending.

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The test for explanatory evidence set out in the Bill is a high one. Once it has been met, we consider it is important that the court should have this information to perform its task effectively. We do not therefore provide for the exclusionary test to apply.

In relation to evidence admissible to correct a false impression, there are a number of safeguards to ensure that evidence is admitted under this head only where it is appropriate to do so and proportionate to false impression. I give an example of Clause 89(3).

I now turn to Amendment No. 188, in the name of the noble and learned Lord, Lord Ackner, on an issue raised in Committee. We offered to look further at this provision and table an amendment if required. Briefly, Clause 96(2) ensures that where evidence is relevant to charge A but not to charge B, it is not excluded from the proceedings for lacking sufficient relevance. For this reason, we consider that something along the lines of this provision is required. However, the concern has been raised that the court should be able to consider the prejudicial impact of the evidence on the whole of the proceedings.

We recognise that that is an important point and, on reflection, believe that Clause 96(2) can be improved in this respect, which is why I have tabled Amendment No. 189. This makes clear that Clause 96(2) does not apply to the operation of the exclusionary test in Clause 84(3) under which, therefore, the court will need to consider the impact of the evidence on the proceedings as a whole. I hope that that reassures the noble Lord that the substance of the concern has been met and that his amendment can be withdrawn.

As well as Amendment No. 189, I should like to move a number of minor amendments—Amendments Nos. 190, 191 and 241. These are consequential provisions which ensure that other statutory provisions are in line with the proposals in the Bill.

I have sought to outline the differences between the Law Commission's draft and this Bill because there may have been some fundamental misunderstanding. Our Bill is sound because it rests on the sure foundation of what was proposed by the Law Commission. Our proposals are aimed—and I believe that they succeed—at producing a clear, comprehensive, accessible statement of the law, drawing together well established principles of current jurisprudence and restating them in such a way as to ensure that the rules of evidence assist the search for truth in criminal trials. The proposal has succeeded in giving us a great deal more clarity.

I hope that when we come to the additional amendments we will be able to explore how, if at all, they can be better expressed.

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