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131RPage 171, line 30, leave out "95" and insert "96"
131SPage 217, line 8, leave out "95" and insert "96"
131TPage 217, line 9, leave out "(1)" and insert "(1C)"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T.

Noble Lords will recall that, when the matter was last before your Lordships' House, the Law Commission's draft on the amendments supplanted the previous ones, since when we have proposed certain amendments to that clause. This is very familiar territory. In this part of the Bill, we seek to reform the rules dealing with evidence of bad character and to set them on a consolidated and coherent basis for the future. Essentially, amendments accepted in this House, and on which this House has insisted, would replace the Government's proposal with the scheme drafted by the Law Commission.

We have had extensive debate on the issues involved. I hope that I have explained the extent to which the Government have drawn on the Law Commission's work. Nevertheless, it has proved extremely difficult to reach an agreement on exactly what form the statutory scheme should take. The Government propose an

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inclusionary rule, under which relevant evidence would be admissible subject to inclusion in the interests of justice.

Such rebalancing is necessary to ensure that the courts have the evidence and material that they need to determine the issues in the cases. However, there are clear safeguards to ensure that the interests of defendants are protected and trials remain fair. I outlined those at length during the previous debate on them.

The Government have also gone to great lengths to meet concerns about how the proposals would operate. They are reflected in the amendments proposed by the other place. They include a tighter definition of evidence of bad character, a clear requirement for the prosecution to give notice of their intention to rely on a defendant's record and making clear that juvenile convictions are to be admitted in adult proceedings unless the interests of justice require them to be admitted.

We have also sought to address concerns about the operation of Clause 93(1)(d)—the presumption that convictions for the same, or a similar, offence should be admissible. We have done so by bringing the presumption under the category of evidence relevant to the issues in the case. In doing so, we have created a closer link between that evidence and the question of propensity.

The amendments that we have tabled further clarify our intent that relevant evidence should go before the court but there is perfectly proper opportunity if that evidence is considered to have more prejudicial than probative value for it to be excluded on the discretion in exercise by the judge.

Moved, That this House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T.—(Baroness Scotland of Asthal.)

131ULord Kingsland rose to move, as an amendment to the Motion that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T, leave out from "119" to end and insert ", 122 to 125 and 127 to 131, do agree with Commons amendments 131C to 131G and 131I to 131T, but do insist on its Amendments Nos. 121 and 126 and do disagree with Commons Amendment No. 131H".

The noble Lord said: My Lords, for technical reasons, the amendment tabled by the noble Baroness, Lady Walmsley, and our amendment have been grouped. I shall speak, telegraphically, to Amendment No. 121, and the noble Baroness, Lady Walmsley, will speak to Amendment No. 126. Also for technical reasons, there will be a single vote. Had there been separate votes, we would have abstained from voting on the noble Baroness's amendment.

Amendment No. 121, which would delete Clause 96, represents a substantial concession to the Government. By ceding the Law Commission's draft Bill, we, with deep reluctance, abandoned our commitment to an exclusionary presumption. There remained therefore

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only the issue of propensity evidence in Clause 96. In a spirit of co-operation, we hoped, and continue to hope, that a solution will be found in another place.

Moved, as an amendment to the Motion that the House do not insist on its Amendments Nos. 114 to 119 and 121 to 131 and do agree with the Commons in their Amendments Nos. 131C to 131T, leave out from "119" to end and insert ", 122 to 125 and 127 to 131, do agree with Commons Amendments Nos. 131C to 131G and 131I to 131T, but do insist on its Amendments Nos. 121 and 126 and do disagree with Commons Amendment No. 131H.—(Lord Kingsland.)

Baroness Walmsley: My Lords, in rising to support the amendment moved by the noble Lord, Lord Kingsland, I shall also speak to Amendment No. 131H. I am returning to this matter because I feel so strongly that this is such a thoroughly bad Bill in respect of justice for children, for four reasons. First, Amendment No. 131H waters down a crucial immunity which children deserve because of their special status—that of having convictions used against a defendant in court which were committed when, in all other civilised countries, the child would have been below the age of criminal responsibility. Secondly, the Bill racks up sentences for children and enshrines minimum sentences in statute. For example, a 10 year-old can be given 12 years for murder. Thirdly, it brings children into the criminal justice system inappropriately in situations that would have been better dealt with in other ways through other agencies—in the drug testing provisions, for example. Finally and most fundamentally, the Bill treats children as miniature adults instead of what is needed in order to ensure justice for children, which is to enshrine the welfare of the child in the criminal justice system. For those four and many other reasons I support the amendment moved by the noble Lord, Lord Kingsland.

Baroness Scotland of Asthal: My Lords, I have listened to the telegraphic comments of the noble Lord, Lord Kingsland. I understand that he proposes to accept a majority of the Government's proposals, but that this House insists on its disagreement to two provisions. The first makes it clear that evidence of propensity can be given in a case and such evidence is already admissible in certain circumstances. However, this area of the law is complex, as I hope the noble Lord accepts. We have therefore given this issue a lot of consideration and we consider it desirable to make it clear in the Bill.

The second relates to lifting the absolute prohibition on admitting juvenile convictions in adult proceedings, which is a matter to which the noble Baroness, Lady Walmsley, has spoken. I have taken into account, as on every occasion, the concerns that the noble Baroness rightly has that things must be done in the best interests of children. The noble Baroness will know that we on the Government Benches very much share her concern and the desire to ensure that there is proper differentiation and recognition for the vulnerability of children and the

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differentiation that comes with age. We have already offered substantial movement on that issue by introducing an amendment that proposes that convictions should be admitted only when the interests of justice require that to happen. We believe that that strikes the right balance. In the interests of justice, there are some cases involving children in which such matters should be heard.

Noble Lords will know that we have shown considerable flexibility in pursuing our proposals. We believe that they constitute a sensible and coherent whole. I therefore urge this House to resist the noble Lord's Motion and to allow the amendments that have been properly passed by the other place to stand.

Lord Kingsland: My Lords, although propensity evidence has always been admissible in circumstances in which the defendant attacks the prosecution's good character, it has never been admissible as an issue in the case. That is the source of the fundamental difference between the Government and ourselves as the noble Baroness knows well. In those circumstances, I would like to test the opinion of the House.

2.15 p.m.

On Question, Whether the said amendment (No. 131U) shall be agreed to?

Their Lordships divided: Contents, 166; Not-Contents, 115.

Division No. 3


Ackner, L.
Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blaker, L.
Blatch, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Bridges, L.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chalfont, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Dholakia, L. [Teller]
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Feldman, L.
Ferrers, E.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Geraint, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooson, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussey of North Bradley, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kimball, L.
Kingsland, L.
Laing of Dunphail, L.
Laird, L.
Laming, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Montagu of Beaulieu, L.
Montrose, D.
Moore of Lower Marsh, L.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbourne, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Park of Monmouth, B.
Parkinson, L.
Peel, E.
Phillips of Sudbury, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Saatchi, L.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Vivian, L.
Waddington, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Worcester, Bp.
Wright of Richmond, L.


Acton, L.
Allenby of Megiddo, V.
Alli, L.
Alton of Liverpool, L.
Amos, B. (Lord President)
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhatia, L.
Billingham, B.
Birt, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Chester, Bp.
Christopher, L.
Clarke of Hampstead, L.
Condon, L.
Craig of Radley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Erroll, E.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Freyberg, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greengross, B.
Grenfell, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollick, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Masham of Ilton, B.
Massey of Darwen, B.
Mitchell, L.
Moser, L.
Parekh, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Whitty, L.

Resolved in the affirmative, and amendment agreed to accordingly.

20 Nov 2003 : Column 2083

Motion, as amended, agreed to.

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