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Lord Thomas of Gresford: My Lords, the noble Baroness quoted from the Joint Committee on Human Rights in reference to convictions where there is simply silence. I have already pointed out that she has conceded that there will be no conviction in such cases and that silence will not make a case of its own.

I was concerned about the shaky foundations of a defendant giving evidence and blaming someone else—that is, blaming his or her co-defendant. How is a jury to sort out those two things? It is not a new
 
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problem because defendants have been interviewed by police officers since time began and they have been able to, and can, give an account which sets out their side of things. They might say, "It wasn't me; it was my husband", or "It wasn't me; it was my wife who inflicted the fatal blow". But the policy of the law until now has always been that statements made to police officers are evidence only against the person who makes that statement and not evidence against anyone else. The reason that that policy has been adhered to—it has been developed from the common law and adhered to throughout the centuries—is that it is unsafe to rely on the accusation of one defendant against another defendant.

These new proposals now compound the problem. Not only are we sweeping away that policy but we are allowing juries to convict a person on the say-so of a co-defendant without a prime facie case being put forward by the prosecution. It is a recipe for disaster and for wrongful convictions. I do not think that the public will have confidence in a system which allows people to go to prison for life simply because their partner, who can lie better, is preferred by the jury. That is no position at all.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for giving way. He is right that I did not deal with that, but it is not right for him to suggest that this is a new issue. Matters of this kind are dealt with every day in our courts, and juries are asked the simple, straightforward question: "Which evidence do you prefer? Do you prefer the evidence of the Crown, the defendant or the co-defendant?" That is why we have a jury. It is the decider of fact, and surprisingly juries have been very good at doing that for hundreds of years.

Lord Thomas of Gresford: My Lords, they have been very good at doing it for hundreds of years because there is always a prima facie case. They can compare the account of one defendant against the prosecution evidence and decide, in that context and within that framework, who is telling the truth. Here, we are faced with a situation where there is no prima facie case against two people and they simply point the finger of blame at each other. There is no way in which to resolve that except by way of a beauty contest in which the question is: "Which one do you think is better and which one appeals to you more?".

As I have said so often, this really is a recipe for disaster, but perhaps it is too late in the course of this Bill for us on these Benches to do very much more than give the warning, and we shall have to see how the courts deal with it. However, one thing is absolutely certain: a judge will tell a jury in the strongest possible terms that a defendant has an interest to serve when he accuses his partner of having committed the act which led to the death. In the absence of any corroborative evidence called by the prosecution, the direction is likely to be so strong that I do not believe that, in the long run, this measure will result in the number of
 
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convictions for murder that the Minister and those advising her hope that it will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

COMMONS AMENDMENT

3 After Clause 5, insert the following new clause—
"EVIDENCE AND PROCEDURE: NORTHERN IRELAND
(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death ("the section 5 offence").
(2) Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I.1988/1987(N.I.20)) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—
(a) of murder or manslaughter, or
(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,
even if there would otherwise be no case for him to answer in relation to that offence.
(3) Where a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I.1981/1675 (N.I.26)) whether to commit the defendant for trial for the offence of murder or manslaughter, if there is sufficient evidence to put him upon trial for the section 5 offence there is deemed to be sufficient evidence to put him upon trial for the offence of murder or manslaughter.
(4) At the defendant's trial the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).
(5) An offence under section 5 is an offence of homicide for the purposes of the following provisions—
Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I.1998/1504(N.I.9)) (mode of trial of child for indictable offence);
Article 32 of that Order (power and duty to remit children to youth courts for sentence)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I spoke to this amendment with Amendment No. 2.

Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Scotland of Asthal.)

[Amendment No. 3A not moved.]

On Question, Motion agreed to.

COMMONS AMENDMENTS

4 Clause 10, page 6, line 4, at end insert—
"( ) After subsection (3) of that section insert—
"(3A) In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.""
5 Page 6, leave out lines 17 to 19.


 
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6 Clause 11, page 6, line 39, at end insert—
"( ) After subsection (3) of that section insert—
"(3A) In proceedings under this Article both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under Article 5.""
7 Page 7, leave out lines 10 to 12.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 7.

These amendments aim to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder. They divide into three categories. Particularly in view of the comments made by the noble Baroness, Lady Anelay, I intend to take a little time on these amendments so that the House has a full opportunity better to understand the way in which these provisions are made out.

For the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003 that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal.

The surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge.

Baroness Anelay of St Johns: My Lords, perhaps the noble Baroness would assist me. I thought I was paying proper attention to her—I apologise if I was not—but on my list the next group of amendments are what I considered to be technical amendments—Amendments Nos. 4 to 7. I may be wrong. I had not anticipated that the noble Baroness was to speak now on surcharges, which are mentioned in Amendments Nos. 8 and 9. I appreciate that that may be an error on my behalf.


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