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Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.40 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Consolidated Fund Bill

Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

Criminal Justice Act 2003 (Categories of Offences) Order 2004

The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That the draft order laid before the House on 15 November be approved [First Report from the Joint Committee; 23rd and 24th Reports from the Merits Committee, Session 2003–04; 2nd Report from the Joint Committee on Human Rights].

The noble Baroness said: My Lords, this is the first order to be made under the power to prescribe categories of offences conferred on the Secretary of State by Section 103(4)(b) of the Criminal Justice Act 2003. This order supports the major changes contained in that Act, which will let juries hear a wider range of relevant evidence so enabling them to reach a just verdict.

Where a previous conviction is in the same category as the offence with which a defendant is charged, this will create a strong presumption that the previous conviction should be admitted, but this presumption will be rebuttable. The defence will still be able to oppose the admission of such evidence on the grounds of unfairness, and the court retains its discretion to refuse to admit such evidence where it would have an adverse effect on the fairness of the proceedings. So the general exclusionary power in Section 78 of the Police and Criminal Evidence Act 1984 will still be available.

It may be for the convenience of the House if I begin by summarising the evidence that has informed the Government's approach to the creation of the two categories of offences that are the subject of this order. As regards the theft category, the Government have noted that of the nearly 20,000 persons convicted of an offence within this category in the first quarter of the
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year 2000, some 14,500 persons were reconvicted within two years. I am sorry to say that nearly two-thirds of those persons were reconvicted of an offence falling within the same category of theft, as defined by the order.

In the case of the category of sex offences against young persons, the Government have been influenced not just by reconviction rates, but also by the evidence that sexual attraction to children can have a compulsive and life-long character. I make reference to further information in support of that contention in a letter that I wrote on 7 December to the chairman of the Joint Committee on Human Rights, a copy of which I have placed in the Library, and to which I shall refer further later on.

The purpose of creating categories of such offences is to assist the judge in determining whether to admit evidence of bad character. The Government's position is simple: the jury ought to be told about previous offending within these categories, where that is relevant to the defendant's propensity to commit such an offence.

I turn now to the report on this order that has been produced by the Joint Committee on Human Rights. For the avoidance of doubt about the Government's position on that matter, as I have already said, I placed a copy of a letter in the Library of your Lordships' House.

I am happy to reassure the House that the Government's view is that the order is compatible with the right to a fair trial in Article 6(1) of the European Convention on Human Rights. Our position, put simply, is that the order can and must be used in a way that is compatible with human rights. I use the auxiliary "must" advisedly because by Section 6 of the Human Rights Act 1998 the judge in any trial is under a clear statutory duty to act compatibly with the convention rights. Those rights include, of course, the right to a fair trial. The judge must, therefore, apply the order so as to achieve that end.

We note the Joint Committee's suggestion that the order is theoretically capable of leading to an unfair trial, but we would make two points about that suggestion. First, the Joint Committee is not saying that the order is incapable of leading to a fair trial; merely that it might not do so. In the Government's view, that analysis overlooks Section 6 of the Human Rights Act.

My second point is that we do not accept that the order will in any case mean an unfair trial. The categories contained in the order are simply for guidance to the court. The fact that an offence falls within one of the categories does not mean that evidence of bad character is automatically to be admitted on that account, or at all. That is because the judge retains the discretion to exclude such evidence under Sections 101(3), 103(3), and 112(3)(c) of the Act, as well as under the general exclusionary power in Section 78 of the Police and Criminal Evidence Act, which I have already mentioned. At the risk of labouring the point, the judge will be bound by the Human Rights Act to exercise his or her discretion in a way that is compatible with the convention rights.
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The Joint Committee also raised the issue of judicial training. Again, my letter of 7 December sets out the position in some detail. Suffice it to say for the purposes of this debate that it is clear that the Judicial Studies Board is playing a very active role in ensuring that consistent training and messages are being delivered to judges and magistrates. Finally, so far as the committee's letter is concerned, I can confirm that rules of court have been made, and that they provide safeguards for defendants, both in terms of procedure and in the design of the forms.

I now turn back to the content of the order itself. Chapter 1 of Part 11 of the Act sets out the new provisions regarding the admissibility of evidence of previous misconduct, otherwise referred to as "bad character", in criminal proceedings and abolishes the old common law rules. The structure of these new provisions is as follows: evidence of a defendant's bad character will be admissible so long as it falls under one of the gateways set out in Section 101 of the Act. One of the gateways by which bad character evidence may be admissible is where such evidence is,

That is set out in Section 101(1)(d) of the Act. A matter in issue includes the question of whether the defendant has a propensity to commit offences of the kind with which he is charged.

In order to guide the courts, we have made statutory provision so that this propensity may be established by evidence that the defendant has been convicted of an offence of the same category as the one charged. Section 103(4)(b) then confers on the Secretary of State power to create categories of offences by way of affirmative order. Such categories, however, must consist of offences of the same type. That is set out in Section 103(5) of the Act.

The two categories proposed in the order today are, therefore, for the guidance of the courts in determining whether evidence of the defendant's bad character is relevant to an important matter in issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences that are of the same type. The categories shown in the schedule cover theft offences and sexual offences against children and young persons under the age of 16. These are the two areas of offending that cause the public particular concern, and where there is a strong risk of repeat offending. I beg to move.

Moved, That the draft order laid before the House on 15 November be approved [First report from the Joint Committee; 23rd and 24th reports from the Merits Committee, Session 2003–04; 2nd report from the Joint Committee on Human Rights].—(Baroness Scotland of Asthal.)

Lord Thomas of Gresford rose to move, as an amendment to the above Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".
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The noble Lord said: My Lords, a man once described his regime as,

It was not Mr Blunkett who said that, although he very well might have, as it is the sort of thing that he says from day to day. It was said by Robespierre, head of the Committee of Public Safety in France, when, on 17 September 1793, he brought into force the Law of Suspects, which granted extensive powers to the police and denied suspects almost any rights at all.

In June 1794, the Committee of Public Safety passed a law which effectively reduced the trial process to a simple appearance before a judge, without any right to speak, and with very prompt sentencing and execution. The Public Prosecutor, Fouquier-Tinville, said with some satisfaction, "Heads are falling like roof tiles". Indeed, 17,000 heads fell within a very short period, in the Great Terror.

Mr Blunkett should beware, because within two months, Robespierre alienated his fellow revolutionaries and himself lost his head. He went too far. He insulted those with whom he was working and suggested that they, too, might meet the fate that he met. So his virtuous intentions in introducing these laws did not save him.

My amendment seeks to call into question the policy under which these regulations are laid. We debated the principles when the Bill was going through this House, but now that we are approaching the first implementation of its provisions, it is right for us to state our firm and principled objections. It remains, as we said at the time, bad law, even though the Bill was forced through by its Commons majority—that Monty Python foot that squashes down from time to time. It comes within the category that was very well described recently by the noble Lord, Lord Butler of Brockwell:

However much the Government's poodle apologists have tried to laugh off the views of the noble Lord, Lord Butler, that is the truth of the matter. In this instance, the Government have ignored every informed body that they have consulted—the Law Commission, the judges through the Lord Chief Justice, the professions, the non-partisan organisations such as Justice and Liberty, and their own research.

To put the issue of acquittals in perspective, according to the Home Office publication Crime in England and Wales 2003/2004, there has been a fall in crime generally in this country, although violent crime and sex crimes are up. Even so, something over 5 million crimes, excluding traffic offences, were recorded by the police in that year. Of those crimes, 18.8 per cent only were detected. "Detected" means somebody being charged or summoned or cautioned, having an offence taken into consideration or receiving a fixed penalty notice. That means that 82 out of every 100 offenders who had committed an
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offence were not detected. Detection rates are at their lowest ever in crimes of violence and sexual offences, and of theft and burglary.

Of the detected crime, a very low percentage of recorded crime—about 8 per cent—ends up in the Crown Court. That is roughly 100,000 cases in a year, and of those, 65,000 plead guilty. Of those people who plead not guilty, well over half are found guilty anyway. But it is not always the jury which acquits. In a third of acquittals, the judge dismisses the case, either because the Crown offers no evidence or because he finds that there is insufficient evidence anyway. So acquittals by a jury amount to less than a quarter of contested cases, perhaps 8,000 to 9,000 cases in a year.

In magistrates' courts, where 94 per cent of detected crime is dealt with, the 1999 statistics, which were the most recent that I could put my hands on, state that 98.4 per cent of cases ended either in pleas of guilty or in convictions. Only 1.6 per cent ended in acquittal.

My point is that some might think that the court end of the criminal justice system works rather well and that the problem is not what goes on in the criminal justice system in the courts but the detection rate—the 82 people out of 100 who commit an offence and are never detected.

It cannot be assumed that every person acquitted is actually guilty. Some of the statements one hears from the Prime Minister and the Home Secretary seem to suggest that everybody who is acquitted has got off even though he is guilty. The CPS guidelines are to prosecute if there is more than a 50/50 chance of conviction—on a balance of probabilities, there will be a conviction. That is very short of establishing, to anyone's satisfaction, that a defendant has committed the crime with which he is charged. The problem of crime is not the acquittals of people who ought to have been convicted; it is in the detection rates.

What lies behind these regulations? We say it is a determination to increase conviction rates in cases which are brought to court, not by better investigation, preparation or presentation, but by deliberately prejudicing the mind of the magistrate or the individual juror against the defendant. I say "deliberate" because the Government's own research, commissioned by the Lord Chancellor's Department in 2000, found that magistrates' ratings of likely guilt were significantly affected by information about the defendant's previous record, particularly of a similar recent conviction. Dr Sally Lloyd-Bostock, who carried out the research, drew attention to an earlier study with simulated jurors, where the like effect was observed. She also found with jurors that there was a powerful negative effect for a previous conviction for indecently assaulting a child, even when that offence had nothing to do with the charge that the defendant was facing.

In its report of October 2001, the Law Commission referred to a Dutch study which indicated that 100 per cent of judges who heard the defendant's convictions in advance went on to convict him, while only 27 per cent of those who had no prior knowledge convicted.
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The rest of the evidence was identical. So to suggest that the production of a person's previous record will have no effect is contrary to the evidence which the Government's own research has produced.

We can compare that research with Mr Blunkett's statement on 25 October, when these regulations were introduced. He said:

He says "proper and fair decisions", yet according to the Government's research, juries are being deliberately prejudiced.

The Law Commission set out a scheme with a number of key principles, in particular, that leave to adduce evidence of bad character would always be required from the court. That scheme—its approach and its safeguards—was ignored by the Government. The Government's proposals were attacked by Justice, by Liberty, by the Bar Council and by the Law Society. Only the Association of Chief Police Officers could be found to support them.

As for these regulations, the Merits of Statutory Instruments Committee raised queries about them, and the Joint Committee on Human Rights, in its report on 8 December, concluded that their provisions are not compatible with a fair trial.

I have had the benefit of reading the Minister's letter, and it does not answer the points made by the Joint Committee on Human Rights. In particular, it does not answer the Joint Committee's specific problem when it said that the exercise of the judge's discretion was not sufficient to make these provisions compatible with a fair trial. If there is no fair trial, there can be no safe conviction.

Our criminal justice system depends on the trust and consent of the people. We believe in a fair and public trial. We believe in magistrates with firm roots in their communities, acting independently of political influence and control—a matter to which I will return. We believe in juries chosen by lot from the general population who will determine the truth in serious cases. To assist justice, the common law developed systems of checks and balances: importantly, the law of this country has always sought to ensure that a person accused of a crime is convicted not on prejudice, not by reason simply of evidence of propensity to commit crime, but on evidence of facts.

Witnesses, trusting in the fairness of the system, sometimes with considerable courage, come forward to give that evidence. The damage done by wrongful convictions to the public's trust in the system and the willingness of the people of this country to play their part—to come forward as witnesses, to be jurors and serve as magistrates—is considerable. There may not be a huge number of cases, but there are sufficient to cause disquiet. What is certain and what all those who know anything about this subject are agreed on—all
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those bodies to which I referred—is that the risk of wrongful convictions is significantly increased by these regulations and the Act on which they depend.

Why are these regulations being rushed forward now? They come into force tomorrow. There has been no training of judges. I met a recorder of considerable seniority this morning who said to me, "What on earth is this all about? What are we supposed to do?" The general consensus of opinion in the legal profession is that we have to wait for the Court of Appeal to sort out this Act. We must wait for determinations as to whether there has been a breach of the convention Article 61. We may even have to wait for pronouncements in the House of Lords and the European Court of Human Rights, so why are they being rushed forward in such haste? Why does the Home Office say in its release of 25 October that,

The Minister says, "The judge has a discretion which we are sure he will exercise", and "He will be governed by Article 61 so he is bound to ensure that there is a fair trial", so why is her office coming forward with the statement above? She did not say that at any stage while the Bill was going through this House. That is exactly the sort of message that is being conveyed to our judges. When they come to exercise their discretion, they will be thinking to themselves, "Well, the Home Office is saying that we have to have a strong presumption that this conviction will be revealed". Never mind about a fair trial. This is the important thing and that is what the prosecution will rely on.

Why has there been no training? Why are the regulations coming into effect tomorrow? These regulations are simply vote-grabbing headlines. "Headlines" is the word that the noble Lord, Lord Butler, used in his statement the other day. That is for the Government, but for the person who is wrongfully convicted as a result of having convictions that have little relevance—that he was convicted of theft 20 years earlier when he is facing a charge of burglary or robbery—it is the loss of reputation, the loss of employment and the loss of liberty with only paltry compensation, if he is lucky, at the conclusion. That is all justified on the populist premise that too many guilty people are getting away with it. I wearied your Lordships with the statistics of acquittals in this country to demonstrate that we are not dealing with a problem of acquittals and that the criminal justice system in the courts works well.

Judges will have a discretion to refuse to permit this sort of evidence to go before the jury. Let us hope that, contrary to the Home Office direction, they use that discretion. I am here hoping that a judge who considers an application at a later stage will realise that there is large parliamentary opposition to any attempt by the Government to impose a fetter on his discretion in terms of that Home Office statement of only a couple of weeks ago. Let us hope that judges will use their discretion in accordance with the traditions of the law of this country as it has existed for centuries and not in accordance with some populist policy of the
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moment to grab headlines for the purpose of an election. Only in that way will we achieve justice. I beg to move.

Moved, as an amendment to the Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".—(Lord Thomas of Gresford.)

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