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Standing Committee B
Thursday 23 January 2003
(Morning)
[Mr. Eric Illsley in the Chair]
9.10 am
Motion made, and Question proposed,
That the Order of the Committee [17th December] be further amended, by leaving out paragraph (5) and inserting—
'(5) the proceedings on Clause 62, Schedule 4, Clauses 63 to 97 and Schedule 5 (so far as not previously concluded) shall be brought to a conclusion at 5.50 pm on Thursday 23rd January 2003;
(5A) the proceedings on Clauses 98 to 119, Schedule 6 and Clauses 120 to 125 (so far as not previously concluded) shall be brought to a conclusion at 6.50 pm on Tuesday 28th January 2003;'.—[Hilary Benn.]
Mr. David Heath (Somerton and Frome): I am most grateful for the opportunity to speak about the Programming Sub-Committee. I thank the hon. Members for Nottingham, East (Mr. Heppell) and for Rayleigh (Mr. Francois) for their co-operation in achieving a very satisfactory result in that Committee and, indeed, in this Committee's proceedings so far. It is important that we have adequate time to discuss the very real issues raised by a Bill of such length and complexity, but we might not have done had we proceeded with the initial programme. Having made the necessary changes, which I commend to the Committee, we are now in a position to proceed in good order.
Question put and agreed to.
Clause 81
''Bad character''
Simon Hughes (Southwark, North and Bermondsey): I beg to move amendment No. 467, in
clause 81, page 50, line 10, after 'which', insert 'clearly'.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 468, in
clause 81, page 50, line 10, after 'which', insert 'conclusively'.
No. 361, in
clause 81, page 50, line 10, leave out 'or tends to show'.
No. 362, in
clause 81, page 50, line 11, leave out '(a)'.
No. 469, in
No. 363, in
clause 81, page 50, line 11, leave out from 'offence' to end of line 13.
No. 395, in
No. 434, in
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clause 81, page 50, line 13, at end insert
', and includes a question put in proceedings which makes reference to, or is asked with a view to eliciting, such evidence'.
Simon Hughes: Amendment No. 467 is in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath). We also tabled amendments Nos. 468 and 469, and put our names to amendments Nos. 361, 362 and 363.
The clause is at the beginning of part 11, which is very important. It deals with evidence and, in particular, evidence about character. Party colleagues and members of the Select Committee on Home Affairs have the greatest concerns about the Government's proposals, and we shall gradually build up the arguments as we seek to amend the different elements of the Bill. To put matters simply, however, there is concern that allowing evidence about character to be introduced much more frequently will result in significant prejudice to the defendant, who should be judged on the facts in the case, not the facts of his life.
Clause 81 defines bad character, but our probing amendments would amend the definition by reducing the opportunities—or raising the threshold—for introducing evidence of bad character. We table them without prejudice to our view that the whole proposal has major defects, and we shall argue that it gives rise to a significant prejudice, which is not dealt with. Through the amendments, we seek to temper the extreme nature of the proposal.
Amendment No. 467 would insert the word ''clearly'' so that the clause read:
''For the purposes of this Chapter, evidence of a person's bad character is evidence which clearly shows or tends to show''.
Amendment No. 468 is a stronger alternative, which would insert the word ''conclusively'' in the same place. Amendment No. 469 concerns a different, but important, point. Paragraph (a) reads:
''he has committed an offence''.
The issue should not be whether someone has committed an offence; it should be whether they have been convicted of an offence. What a person did in the past should not count, irrespective of whether it has been proved. The justice system works reasonably well on the basis that the ticks are in the box once you have been charged and found guilty or you have admitted your guilt. I hope that the Minister sees the importance of making sure that amendment No. 469 is accepted. The wording in the clause is completely wrong, and we should take care not to go down that road.
The first of the joint amendments, amendment No. 361, would remove the words ''or tends to show'' for evidence showing ''bad character''. Like our Conservative colleagues we believe that it is not enough that evidence ''tends to show''—it must ''show''. It must be straightforward. Perhaps we could debate later how we can alter that threshold.
Amendment No. 362 is a probing amendment, and would have the same effect as our amendment on ''been convicted'' rather than ''committed an offence''. It aims at the same objective of replacing the words
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''committed an offence'' with something more acceptable mentioning the fact that there has been a conviction. I hope that the Minister will accept that it is ''conviction'' that is material, not commission of the offence.
Amendment No. 363 is a probing but important amendment, which would reduce the test simply to previous convictions. That is because clause 81(1)(b) is an extremely—extraordinarily—widely drawn precondition. It suggests that the ''bad character'' test, which is the test of when something can be triggered through admission, could be met if evidence shows that the defendant
''has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person''.
Mr. James Clappison (Hertsmere): I am listening with interest to the hon. Gentleman. I may not agree with him entirely, but there is something in what he says. Does he agree with me that few of us can honestly say that we could pass that test?
Simon Hughes: I wonder whether any of us in the Committee, if we were summoned for an offence before a court, could not be said to have behaved or have been disposed to behave—which is much more subjective—in a way that might be viewed with disapproval. That opens a Pandora's box of possibilities. I doubt that there is a member of the Committee who has not said or done many things that will have been viewed with disapproval by some of their constituents—and they are the people whom we are trying to keep happy. It is impossible to judge, for all sorts of reasons. We are getting off on a very wrong foot.
My hon. Friend the Member for Somerton and Frome and I have considerable concerns about this part of the Bill. Perfectly good reasons exist to get rid of the old uncertainties and to replace them with new certainties. We do not dissent from that view. There may be very good reasons to remove the common law rules and replace them with a codification of rules. I have signed up to that in principle.
Good arguments exist that rules of evidence about character should be included in one place, so that everyone who is involved in criminal law can find them. That would advantage not only lawyers but lay people and, indeed, defendants. Defendants who end up in prison spend a great deal of time looking through Acts, if my post—and other people's post—is anything to go by.
It is very important that we understand that there are obvious occasions when a person's bad character features in the case. The most obvious example is when an individual challenges someone else's character. If a person asserts that someone else is untruthful, it is quite reasonable that he can expect the fact that he may also be untruthful to be put in court for the jury to consider. If an individual asserts that someone else has a previous conviction, he cannot expect the trial to take place without his previous convictions being asserted. There are logical occasions when character
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comes into the frame. However, that is done by choice and because there is a specific reason for it to happen.
A defendant will sometimes agree to include references to his character, and that is entirely reasonable. We can all think of many cases in which someone will admit to something in public because he believes that it is better to come clean. Whether through correspondence as MPs, from what we have read in local newspapers, or from cases with which we have been involved, we have all had experience of cases in which the defendant is honestly not guilty. However, because the usual suspects are the easiest suspects to pick up, sometimes a person who is not guilty may say that he has committed similar offences before but has been going straight for five years. He has a job, has settled down, and has a girlfriend, or a wife and kids. He honestly has not committed the crime, and he does not mind whether the jury know that he has ''previous''. That is reasonable to say. However, it is unreasonable for other people to elect to make that information known without safeguards.
This is similar to the previous sitting, at which the interventions from the hon. Member for North Down (Lady Hermon) were so effective. I know that the Minister will say later on whether there is a fair trial test. However, that is all about a proposal to change the presumption. If the clause is passed unamended then, instead of presuming that a person's previous criminal history should not be in the frame, previous criminal history will be the starting point, and the defendant will have to show why it should not be. We regard that as a considerable disadvantage.
I hope that colleagues in other parties will contribute in a moment to stand up against the most extreme and widely drawn parts of clause 81. We must also look carefully, as the hon. Member for Beaconsfield (Mr. Grieve) regularly argues, at the exact wording that is before us in each of the definitions. I appreciate that clauses that give definitions are not the most exciting ones. However, they are crucial as we go through this part, which contains many definitions. If we get the definitions wrong, and if we draw them too widely, significant injustice will be done.
I end by saying that the Home Affairs Committee was very clear that it had difficulty with the proposal to allow previous convictions to be automatically admitted at trial. It believed that that could lead to miscarriages of justice. Research supports that, so it is not just speculation. The Home Affairs Committee made two points in particular. It said that to allow previous convictions to be automatically admitted makes weak cases persuasive. One only has to add in the fact that that person has been guilty of an offence before, and the rest of the straws suddenly come together to make a brick for the jury—or might do. We should also be careful, because the provisions would allow usual suspects to be collected much more often, and put them at risk of being brought before the courts more regularly.
I hope that hon. Members not only will be sympathetic to the amendment, but think carefully about phrases such as, ''tends to show'', which is loose,
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and, ''has committed an offence.'' We should be talking about convictions, not offences.
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