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Lord Ackner moved Amendment No. 175:
- Leave out Clause 83.
On Question, amendment agreed to.
Clause 84 [Defendant's bad character]:
[Amendment No. 176 not moved.]
Lord Ackner moved Amendment No. 177:
- Leave out Clause 84.
On Question, amendment agreed to.
Clause 85 ["Important explanatory evidence"]:
Lord Ackner moved Amendment No. 178:
- Leave out Clause 85.
On Question, amendment agreed to.
Clause 86 [Offences "of the same description" or "of the same category"]:
Lord Ackner moved Amendment No. 179:
- Leave out Clause 86.
On Question, amendment agreed to.
Clause 87 ["Matter in issue between the defendant and the prosecution"]:
Lord Ackner moved Amendment No. 180:
- Leave out Clause 87.
On Question, amendment agreed to.
Clause 88 ["Matter in issue between the defendant and a co-defendant"]:
Lord Ackner moved Amendment No. 181:
- Leave out Clause 88.
On Question, amendment agreed to.
Clause 89 ["Evidence to correct a false impression"]:
Lord Ackner moved Amendment No. 182:
- Leave out Clause 89.
On Question, amendment agreed to.
Clause 90 ["Attack on another person's character"]:
Lord Ackner moved Amendment No. 183:
- Leave out Clause 90.
On Question, amendment agreed to.
Clause 91 [Stopping the case where evidence contaminated]:
Lord Ackner moved Amendment No. 184:
- Leave out Clause 91.
On Question, amendment agreed to.
Clause 92 [Offences committed by defendant when a child]:
Baroness Seccombe moved Amendment No. 185:
- Page 60, line 11, at end insert "in the following circumstances—
The noble Baroness said: My Lords, I am sure that many noble Lords will recognise the amendment from the Bill's Committee stage in this House. It concerns a matter that I wish to revisit today. I hope that I shall be forgiven for repeating myself, but I wish to make it very clear what we are trying to achieve with the amendment.
The clause repeals subsections (2) and (3) of Section 16 of the Children and Young Persons Act 1963. Those subsections concern offences committed by children and ensure that upon reaching the age of 21 individuals do not have earlier convictions taken into account in later trials. I stand by the assertions that I made in Committee regarding this clause and I repeat that, as currently drafted, it places an unfair burden on those who have, for whatever reason, made mistakes in the past. The clause deals with children who are under the age of 14 when they commit a crime. I am sure that we can all understand the reasons for not including any such matter in a trial which, in many cases, could take place years later.
I agree with many of the points made in Committee by the noble Baroness, Lady Walmsley, and I shall not use up the time of the House by repeating them, except to say that like the noble Baroness we are unsure what good the clause would do and what the Government could hope to achieve by its unamended inclusion in the Bill.
My amendment would ensure fairness by narrowing the instances in which evidence of a criminal record could be adduced to two specific categories. The first category is that only those who continually commit crimes throughout their youth would have their record put before a jury. Therefore, it would exclude those who had made an error and learnt a lesson. The second category is where the defence has introduced evidence of a defendant's record before the age of 14. The provision is similar to that of the current law on similar fact evidence.
I believe that this clause would not make a trial unnecessarily complex, as was suggested by the Minister. It would offer the Government a compromise between the current position and the amendment that has been tabled in the names of my noble friends Lord Kingsland and Lady Anelay and the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Walmsley, which would leave out the clause altogether.
Those of us who are parents, and even grandparents, understand the temptations and situations that can beset children as they grow up. I believe that if they have genuinely turned their back on offending, it would be an intolerable burden to carry for the rest of their lives. It means that a conviction would never be spent, and I would hate us to legislate to that effect. I plead with the Minister to agree to the amendment. I beg to move.
Baroness Howarth of Breckland: My Lords, I did not speak to this matter on the first occasion as I was not in the House, but believing, as I do, that it is the responsibility of the state to help and to support young people in trouble, I have always valued the protection given to children in the courts through the Children and Young Persons Act. I am disappointed that in the pursuit of convictions the responsibility that we have towards such young people, usually for the most part from very difficult backgrounds, is to be diluted.
Despite that and accepting that I would much prefer the whole of this provision to be struck out, I recognise that times change. In the area of child abuse and child sexual abuse, where I currently work, we know that without treatment young offenders will accelerate their behaviour. In the interests of other children and young people, the pattern of offending must be understood over time. That is why I support the amendment tabled by the noble Baroness, Lady Seccombe, and hope deeply that the Government will be able to accept the circumstances given.
However, research shows that most young people grow out of offending behaviour and it would be helpful if the Minister could also give reassurance that there would be guidance on what would constitute persistent or continuous behaviour. Will that come from one of the departments—the Department of Health or LCD—or will we have to wait for case law? By saying that I recognise that this latter point assumes acceptance of the amendment, but it is such a good balance of justice and rights that I hope that the Minister will be able to do so in the interests of our young people and their future.
Lord Donaldson of Lymington: My Lords, perhaps I may suggest that there is a misprint in the amendment, which no doubt the noble Lord, Lord Kingsland, would wish to correct. Surely it should read:
Baroness Scotland of Asthal: My Lords, as on so many occasions, I respectfully agree with the noble and learned Lord, Lord Donaldson, although I am sure that some defendants will try. I have listened with care to what the noble Baroness, Lady Seccombe, has said and what was echoed in support by the noble Baroness, Lady Howarth. These are important issues in relation to how we deal with children.
Section 16(2) of the Children and Young Persons Act 1963 represents an absolute bar on admitting evidence of a defendant's convictions for offences committed under the age of 14, in proceedings for an offence committed over the age of 21. Clause 92 proposes to lift that restriction.
However, that does not mean that such evidence will automatically be heard; far from it. The effect will be that these convictions will be heard only under the new rules set out in the Bill. Where those criteria are satisfied, including most importantly the requirement that the probative value of the evidence outweighs its prejudicial effect, they will be capable of admission. It does not mean that they must be admitted, but simply that they are capable of admission. That is the proposal in the Bill. It rests on the principle that evidence should be capable of being heard by juries and magistrates provided that it is relevant to the case and can safely be admitted.
I would like to echo a remark made by the noble Baroness, Lady Howarth, in her contribution. We know a great deal more now about the pattern of offending behaviour. Regrettably, in certain specified cases it is important to know what has happened in the earlier years in order to be able better to understand how that ripened into behaviour in mature age.
Amendment No. 185 in the name of the noble Baroness recognises that Section 16(2) is a blunt instrument and proposes to lift the restriction in some circumstances but not in others. Our concern with the amendment is that anomalies will arise and that we will have added a further complex rule in an area of the law where greater clarity is required.
The amendment attempts to set out the kind of circumstances where a person's record of offending at a young age might have sufficient probative value to be admitted. We are not unsympathetic to the concern that this evidence should be admitted only where it will have a clear bearing on a case. However, we consider that there are difficulties in attempting to identify in advance all the possible situations where it may be appropriate to admit this evidence.
That is why we prefer the proposal that this kind of evidence should be subject to the careful rules and safeguards set out in the Bill. These are there precisely to ensure that evidence must be clearly relevant to be admitted, and to provide safeguards to protect the interest of defendants. These would ensure that offending that is too remote—for example, an isolated incident many years in the past—is simply not heard.
It is not, however, clear how the amendment would improve on the general scheme of the Bill. That would enable evidence to be admitted where it was relevant by showing persistent offending, or where it was evidence to correct a false impression given by the defendant by introducing evidence of his experiences under the age of 14. But it would also enable evidence to be admitted in other circumstances where it was relevant; for example, if it bore a striking similarity to later offending. On the other hand, we accept that introducing new concepts, in the way the amendment proposes, would lead to complexity and legal argument about, for example, what exactly constitutes "similarity" for the purpose of identifying,
The debate has certainly highlighted a range of concerns with the proposal to make these convictions admissible. The arguments were persuasively put in Committee and they have been repeated today. They are real concerns and the Government recognise that there are particular considerations with the kind of convictions and circumstances covered by Section 16 that do not apply more generally.
I am therefore prepared to look further at whether the approach taken in the Bill pays sufficient regard to those factors—I hope that will give the noble Baroness, Lady Seccombe, some reward for her proper persistence—and consider whether there is a better way forward that we might suggest at Third Reading. I cannot of course give a guarantee, but I can certainly
(a) the prosecution can show continuous or persistent commission of similar offences by the defendant since the time that he first committed them, or
(b) the defence has introduced evidence of the defendant's experiences before the age of 14."
6.15 p.m.
"the prosecution can show continual",
and not,
"continuous or persistent commission of similar offences".
It is difficult to commit offences continuously.
"persistent commission of similar offences".
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