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Baroness Anelay of St Johns: My Lords, as a result of the words of the Minister and the noble Lord, Lord Thomas of Gresford, we have two matters before us that we need to debate tonight. First, the content of the statutory instrument itself—we should consider whether the drafting of that appropriately reflects the intention of this House when we debated the propensity during the Criminal Justice Act 2003. We also need to consider whether the provisions are logical and proportionate.

Secondly, after the Motion moved by the noble Lord, Lord Thomas of Gresford, we need to examine whether it is right to reopen the whole matter of the Government's policy of providing for a presumption in favour of admissibility rather than the current presumption against it.

I will first refer somewhat briefly to the Motion moved by the noble Lord, Lord Thomas of Gresford. I cannot follow his historical allegory or accuracy, but my memory goes back to the 2003 Act at least. At that stage, we on these Benches confirmed that we accepted with considerable caution that change to the original rules on evidence of bad character was required. On that basis, I do not resile from that position today. The question was how the provisions could be framed in such a way that we could avoid the chance of irrelevant material that was merely prejudicial and could not be probative going before a jury. The Government acknowledged then that merely to legislate for a free-for-all, whereby everyone's previous convictions automatically went in, would be wrong.

A judicial safeguard therefore does remain, and remains even in spite of this order. However, the noble Lord, Lord Thomas of Gresford, has raised the relevant point of the directions issued recently by the Home Office with regard to a strong presumption being required. I certainly look forward to an explanation of that from the Minister. Given our undertakings made at the time of the passage of the Criminal Justice Act 2003 and the existence of the judicial safeguard, I have to say that if the noble Lord, Lord Thomas of Gresford, were minded to divide the House tonight on his Motion, we would not be able to support him.

On the content of the statutory instrument itself, I make a procedural point that will not surprise the Minister. It goes to the heart of the concerns that I have had about the way in which this Government tend to introduce skeleton Bills with loads of orders in them. The Criminal Justice Bill was certainly not a skeleton; it was mammoth, but it did have a lot of orders in it.
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When the Government lay before us an order, they then tend to give us a little bit of a curate's egg; I beg the pardon of the right reverend Prelates for using that phrase. Part of the order tends to be apparently unobjectionable, or at least arguable, and the other part something that we find that we cannot accept. When an order is laid in that way, we find ourselves faced with the difficult constitutional and party political problem that if we throw out the baby with the bath water, that may well not be understood by the public. That is what has happened today. The Government are aware that in this House, we are reluctant to take the nuclear option. Since we are not allowed to amend a statutory instrument, if we do not like part of it, we would have to throw the whole thing out. There are certainly objectionable drafting provisions in today's order that have been piggy-backed on to provisions that we find properly acceptable.

During our debates, the issue of propensity became the key factor in determining admissibility. We understood at the time of the passage of the Criminal Justice Act 2003 that, of course, the Government would not only seek to introduce orders to describe categories of offence but that, in doing that, they would not necessarily simply compare one offence with another. It was obvious that they would seek to widen the scope and push the boundaries as far as they could. Indeed, we accepted that that would not necessarily be an objectionable use of the order-making power. The problem today is that the Government have drafted the first part of the order on theft in an illogical and potentially inequitable manner.

In the theft category, I am mystified by the Government's logic—as were my honourable friends in another place last week. Theft is a dishonesty offence; it is about taking someone else's property. If the common link is dishonesty, the thing that one immediately notices is that there is a large number of offences in the list that the Government have not included in the category. For instance, they have not included obtaining property by deception. Fraud offences are not included in the category—which is, again, rather odd. So on what basis did the Government decide that those offences do not go as to propensity for theft but that burglary does?

As the Joint Committee on Human Rights highlighted, it is possible to commit burglary without taking anyone's property—without committing a theft. I also note the letter from the Joint Committee on Statutory Instruments in another place to Mr Clayton at the Home Office. Paragraph (1)(a) asks:

It seems strange that burglary is in the list. We therefore believe that the first category of offence may be flawed, and that we may end up with the courts at a later stage pulling that part of the order to pieces.
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The second category of sexual offences is very wide, but at least there appears to be an inherent logic behind it, because it relates to sexual offences against persons under the age of 16. We acknowledge that it may follow logically that, if someone has a propensity to commit an offence of a sexual nature against somebody under 16, that may establish a commonsense link between the various offences. However, I must observe in passing that people who serve on a jury may find it odd that they will be made aware of an offence of rape against a person who is one day under the age of 16 but not of a string of offences of rape by that same person against persons who are one day over the age of 16. That shows the artificiality of the Government's determination to enforce the presumption of admissibility.

It will require the expertise and experience of the judiciary, on which the Minister has relied and I certainly rely, to determine how the provisions will be applied. That takes me to my last point, to which the noble Lord, Lord Thomas, has very properly referred—the training of the judges themselves. That is a matter which very much concerns me. I note that the 23rd report of the Merits of Statutory Instruments Committee of this House makes the point at paragraph 13, that,

The letter from the noble Baroness, Lady Scotland, to which reference was made earlier today, lists the training that it is anticipated will take place. It is a list that is long in referring to the people who are to be trained but short on any timetable, and signally lacking in any commitment that the Government expect training of all the judiciary to have taken place before the provisions take effect—and as the noble Lord, Lord Thomas of Gresford, said, that is tomorrow. I find that very disturbing indeed.

When my honourable friends in another place pressed this matter, the Minister, Mr Paul Goggins, did not seem very able to assist them in clarifying the situation. As the noble Baroness who wrote the letter is present, perhaps all will now become clear. As I was somewhat disappointed by the Minister's response in another place I took the liberty yesterday of approaching the Judicial Studies Board direct. I asked it to confirm when the training of the judiciary regarding the matters contained in this order would be completed. It confirmed by e-mail that the seminars will not be completed until 23 March next year. My question therefore has to be: why did the Government decide to press ahead with this order today instead of following what must surely be good practice and waiting until they could be assured that the training of the judiciary was in place? This is not an auspicious start to what I am sure will be a flood of further orders.

Lord Ackner: My Lords, in my submission the Home Office press release of 25 October is grossly improper. The Home Office obviously accepted that it would be bound to put in a provision that gave the
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judges discretion in order to make sure that justice was done. Accordingly, it was provided by Section 101(3) as follows:

That was providing the judiciary with a clear discretion that they must see that justice was done. It is accordingly in my view grossly improper to indicate by a press release that,

The Executive are not entitled, in giving a press release or any other release, to make a comment which has no statutory support purporting to reduce the discretion upon the courts to do justice, which not only exists without statutory support but where there is specifically statutory support for that.

The same press release gives the game away by saying that the order will,

I emphasise the following words—

What an extraordinary phrase to use. According to this, there is no harm in prejudicing the fairness of the trial provided you do not do it "unduly". What on earth does "unduly" mean? I suppose it means provided that you do not ignore what we, the Executive, tell you is the strong presumption that you should reveal the conviction to the jury.

With regard to the question of training, I adopt all that has been said on the issue of timing. Your Lordships may remember that the Lord Chief Justice and the judges of the Court of Appeal Criminal Division discussed this among themselves on Report on 4 November 2003. In that debate, I quoted from the memorandum that was provided by the Lord Chief Justice. According to the statement that was supported by the Lord Chief Justice and the judges of the Court of Appeal Criminal Division,

This is a manifestation of an excessively authoritarian department—the Home Office—supported, sadly, by the Prime Minister. It purports to deal with the enforcement of its own clauses, which are designed, as has been pointed out, to increase the rate of convictions. In my respectful submission, this is the type of legislation that was so strongly criticised by the
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noble Lord, Lord Butler, in the recent interview reported in the last issue of the Spectator. Accordingly, I support the Motion moved by the noble Lord.

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