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The Lord Bishop of Worcester: My Lords, I confess that I feel a propensity coming on, and some anxiety that the Minister may notice it. My propensity is not to feel reassured by the immensely erudite and sincere reassurance that she has offered about these provisions. I have three reasons for not feeling reassured.
First, and I have mentioned this before, her words contrast quite strongly with the rhetoric that is used to publicise measures of this kind. What we are told is a benign power is presented to the public as a further act that will be tough on crime and will do something about it. It is because of the rhetoric that is used to commend this to the general public that I fear that her reassurance may not count for as much as we would like.
My second reason for not finding her reassurance reassuring this evening is that we have already had launched upon the political and legislative process a further Criminal Justice Bill. Therefore, it is hard not to see the order as one in a series of measures that has no end, because the stakes will always be raised. I have to say to the noble Baroness, Lady Anelay, that accepting the single steps cautiously or with hesitation is less than what is required in the face of that tendency.
My third reason for finding the Minister's reassurance unreassuring is the curious way in which she used her statistics. Research shows, she told us, that those who are convicted of theft or attacks on children are very likely to reoffend. That seems a strange example of what I think that I was taught as the undistributed middle—we are trying a burglary; burglars very often reoffend; this person has committed burglary; therefore he is likely to have committed this one. Even as a logical argument, that does not work.
I am reminded of some words of the noble Lord, Lord Thomas of Gresford, that he did not repeat this evening but that I found very telling in an earlier debate. He asked the noble and learned Lord the Lord Chancellor for guidance on the specific question of how much weight was to be attached by a jury to the fact of previous convictions, but answer came there none. That raised for me the question of whether this kind of legislation attacks the very heart of the Christian understanding of what it is to be a person that lies at the heart of our legal system; namely, the belief that human beings cannot be dealt with as systems of statistical correlations or inductively assessable processes. Every person who ceases to be a burglar—who reforms—has a point at which he or she has committed his or her last burglary. Every burglar who has committed no previous offences presumably commits a first offence. People's lives are not to be decided by reference to what they once did.
Of course I am not a lawyer but, as I understand it, where aspects of the crime being considered bear the footprint—metaphorically as much as literally—of a
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particular person's activities, that can already be made known because it actually is evidence. However, I find it extremely disturbing that we should, little by little, move into becoming a society where rhetoric founded on an undistributed middle is used as the basis to justify taking courses of action that will undoubtedly have a very serious effect on those many inadequate and inarticulate people who come to stand trial. I support the amendment.
Lord Dholakia: My Lords, I thank the noble Baroness for the explanation that she gave about the order. I intend to be very brief. I support the case made by my noble friend Lord Thomas of Gresford, and do not wish to repeat the arguments that he and the noble Baroness, Lady Anelay, advanced.
My noble friend has been consistent in the arguments in support of his amendment. They are not soft on crime or criminals, but are about the protection of the individuals facing criminal prosecutions. In the debate on 4 November 2003, as can be found at col. 729 of Hansard, he set out clearly the need to ensure that the onus must be placed on the prosecution to apply to a judge to declare previous convictions if those are relevant to put before the jury. It is for the judge to rule upon it. Why, therefore, is it necessary to place the onus on the defendant to raise the issue of his convictions before the jury?
Let me take up two issues that have not been addressed in your Lordships' House. I am concentrating on this point due to my concern about people tried in Crown Courts, even if in some cases magistrates' courts are more appropriate. There is ample evidence that a section of young people in our community have an adversarial relationship with the criminal justice system.
A number of previous researches found that black people were more likely to opt for a trial before the judge and jury, rather than being tried by a panel of magistrates in court. It hinges on two factors. They are more likely to trust 12 jurors than three magistrates. Also, the legal advice that they receive is likely to point to higher courts because the defendant is more likely to be acquitted. One simply has to look at the Home Office research to confirm that. The order alters that balance, and that destroys the confidence placed in our courts.
There is another concern that I need to mention. Is there any mention of a cut-off period for information to be given to a jury? There are such things as spent convictions. Will they be referred to, or is there a time after which such information is not relevant? It is wrong to leave that discretion to judges. Parliament must be clear on that point, so that there is a uniform application of the practice throughout all our courts.
I believe that being obliged to reveal their past misdemeanours is more likely to disadvantage people before a jury. It would be a tragedy if the confidence in our jury system was lost, thus further creating a rift
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between the criminal justice system and the ethnic minority community. The system survives because of the trust that it commands. A change is likely to be counterproductive in the long run.
Lord Phillips of Sudbury: My Lords, this is an important order in respect of an extremely important piece of legislation, and I shall speak in favour of the Motion moved by my noble friend Lord Thomas of Gresford, which all other speakers so far have strongly supported, except the noble Baroness, Lady Anelay. Even the noble Baroness was ambivalent in her point—indeed, she made some strong points in favour of the Motion.
I also wish to make it clear that no one promoting the amendment is soft on crime, and I hope that no political capital will be made out of the fact that the Liberal Democrat Benches once again appear to be coming to the aid of those who are accused of crime. In fact, we are coming to the aid of the fair trial process, and we do that on a particular and fundamental basis: it has been the long-standing tradition of our criminal law system that the balance between prosecution and defence should clearly come down in favour of avoiding false convictions. That is not out of softness but out of the realisation that a criminal system that habitually convicts innocent men and women will not withstand time and will come swiftly into public disrepute. Did we not have some striking examples of that in some of the Irish bombing cases, which did huge damage to our system?
I also pay tribute to the noble and learned Lord, Lord Ackner, who is indefatigable and indomitable in his support of that principle. It puts me and people half his age to shame that he has done his homework with such assiduity and produced tonight that scandalous press release which, I am sure, the noble Baroness, Lady Scotland, will not attempt to defend. That is a telling warning of what rides on this matter.
In the matter of public disquiet about crime, which has recently been raised by certain burglary cases and the right to shoot burglars, the Attorney-General, the noble and learned Lord, Lord Goldsmith, struck the right note in that debate, in contradistinction to the Prime Minister. All that is germane to the fact that the provisions will have huge tabloid support because they appear to make life more difficult for those presumed to be guilty. Of course, the presumption of guilt is the very thing that we are trying to avoid in the fair trial process.
I was a little concerned at the way in which the noble Baroness led the debate. She referred to the cases that had been studied in order to ascertain the recidivism rates. I thought that my noble friend Lord Thomas made some telling responses to that. The fact is that the Home Office reply to the report of the Joint Committee on Human Rights did not deal with the question raised. The committee asked for research to be carried out to show whether the commission of one type of offence in the burglary schedule would or would not relate to other types of offence in the burglary schedule. The letter that the noble Baroness wrote on 7 December to Jean Corston in the other
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place simply gave bare statistics of offences in the theft category without attempting to show whether there was any relevance between one type of offence in the schedule and another.
Because it is not yet on the record but should be, I want quickly to read the conclusion of the Joint Committee on Human Rights, published on 8 December. The committee said:
"We are concerned that the draft Order may be incompatible with the right to a fair trial in Article 6(1) [of the European Convention on Human Rights] because it appears to make admissible in criminal proceedings evidence which is both irrelevant to any issues in the case and highly prejudicial to the defendant. We are therefore concerned that the draft Order may be unlawful".
That should go on the record because we on these Benches agree with it.
Perhaps I may now mention one of the reassurances referred to by the right reverend Prelate and advanced by the noble Baroness, Lady Scotland. The noble Baroness said that, under Section 101(3) of the 2003 Act, the court must not—quite fairly, she emphasised the words "must not"—admit evidence under subsection (1)(d) or (g). I shall read on:
"if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would"—
"have such an adverse effect on the fairness of the proceedings that the court ought not to admit it'".
In my view, that is a very tough test. Again, I suspect that we on these Benches are not at all happy—for the same reasons that the Joint Committee was not happy—to leave the matter to the discretion of the judges.
Finally, I remind the House that, in this case, judges means lay magistrates, for whom I have the greatest respect. They do a fantastic and wonderful job. One is not merely talking here of justices' clerks; one is talking of legal advisers operating under justices' clerks, who may not have legal qualifications. How will legal advisers get their head around this extraordinarily complex legislation, bearing in mind that ultimately they can only render advice and cannot direct their justices and bearing in mind, too, that the submissions on admissibility will, I think I am right in saying, be heard with the justices present—that is, in the presence of those who will have to exclude from their minds the previous convictions, if the clerk advises them so to exclude or if they themselves decide to exclude? I say that, again, while emphasising my respect for them.
The measures and schedules that we have debated tonight—particularly the theft schedule—will make life impossibly difficult and sadly will lead to injustices that will rebound on the measure.
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