|
Column Number: 561
Standing Committee B
Thursday 23 January 2003
[Mr. James Cran in the Chair]
Clause 82
Abolition of common law rules
Question proposed [this day], That the clause stand part of the Bill.
2.30 pm
Question again proposed.
Mr. Dominic Grieve (Beaconsfield): Just before we adjourned, I asked the Minister to explain the retention of the common law rules relating to a person's reputation. I should be interested to know the significance of that and what it would still allow that would otherwise be excluded.
The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): Clause 82(2) retains the common law exception to the hearsay rule that allows a person's reputation to be used to prove his bad character. The retention of the rule is part of the provisions on hearsay in chapter 2 of this part of the Bill—specifically clause 102. Without it, there would be an apparent inconsistency between the retention of that rule for the purposes of the hearsay clauses and the abolition of all the common law rules governing bad character evidence. However, subsection (2) does not extend the admissibility of bad character evidence. It simply enables reputation to be used to prove a person's bad character. The fact that evidence of a person's bad character can be given will need to be established separately.
Mr. David Heath (Somerton and Frome): This morning, my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) said that we would not support the retention of the provision until we were assured of an adequate replacement, which we are still not. He is engaged in asking a question at the newly established Youth questions in Westminster Hall. I have heard nothing from the Minister that has reassured me, so I intend to divide the Committee.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 11, Noes 6.
Division No. 25]
AYES
Benn, Hilary
Clark, Paul
Harman, Ms Harriet
Heppell, Mr. John
Kidney, Mr. David
Lucas, Ian
Singh, Mr. Marsha
Stinchcombe, Mr. Paul
Taylor, Ms Dari
Turner, Dr. Desmond
Wills, Mr. Michael
NOES
Cameron, Mr. David
Clappison, Mr. James
Grieve, Mr. Dominic
Heath, Mr. David
Malins, Mr. Humfrey
Simmonds, Mr. Mark
Question accordingly agreed to.
Clause 82 ordered to stand part of the Bill.
Column Number: 562
Clause 83
Non-defendant's bad character
Mr. Grieve: I beg to move amendment No. 387, in
The Chairman: With this it will be convenient to discuss
Amendment No. 435, in
Mr. Grieve: The clause deals with the provisions for the admissibility of a non-defendant's bad character. As we discussed in respect of clause 81, it is common in courts for witnesses called by the prosecution, or by a co-defendant, to have their reputations attacked in order to discredit them. A salient feature of the clause is that the test and threshold for being allowed to cross-examine the character of a prosecution or co-defendant's witness is pitched at a different level from that relating to the defendant. The report of the Select Committee on Home Affairs commented on that. Paragraph 120 says:
''Under the Bill the threshold for admitting the defendant's previous convictions will generally be lower than the threshold for admitting the convictions of other witnesses.''
It then deals with the defendant's position, and continues:
''By contrast, a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case''—
2.36 pm
Sitting suspended for a Division in the House.
2.49 pm
On resuming—
Mr. Grieve: In paragraph 120, the Home Affairs Select Committee says that, in contrast to the defendant's position,
''a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case. (The only other exceptions, for non-defendants, are explanatory evidence or where all parties consent).''
The Select Committee was very concerned about that, and making eminent sense stated at paragraph 122:
''We are concerned at the apparent inequality between the tests for admitting the defendant's bad character, as compared with a non-defendant's bad character. At the moment, a lower test of relevance seems to apply to defendants, than to non-defendants. In our view, there should be a standard test requiring the bad character evidence to have 'substantial probative value' in relation to a matter in issue, which is itself of substantial importance in the context of the case as a whole.''
I endorse that view. I am troubled by the two-tier system that we are introducing. I want to hear the Minister's justification for the imbalance that has deliberately been established. I have heard a bit about the background and I know that the Government have expressed grave concern about witnesses being deterred from giving evidence by having their past
Column Number: 563
raked up when that is not relevant to the case. However, I should have thought that even if we introduced an equivalence between the two categories, there would still be protection, just as it would not be possible to rake up an irrelevant previous conviction against a defendant. I am interested to understand the distinction that is being made.
That brings me to the two amendments. I do not think that the Minister is likely to disagree with what I suggested in an earlier debate about the standard reason for a defence barrister to want to cross-examine a prosecution witness or, for that matter, a co-defendant, about his past. Sometimes such cross-examination may run to the fact that someone else has committed the offence or it may be intended to explain something else about the case; but the bog standard reason, if I may use that expression, is that the defence wants to say that the witness is lying through his back teeth. They do not say that he is mistaken, or that although the witness says he saw the defendant he must have got that wrong. They want to say that the witness is telling an outright black lie, and to show reasons why he might do that.
To support that argument, permission has always been granted to cross-examine such a witness if he has previous convictions. The matter has rarely gone beyond that, in my experience. I suppose that it would be open to the court to permit cross-examination as to other, general bad character, but in my experience the decision usually goes to the fact that the witness has four or five convictions. He may be well known locally as someone who grasses to the police when it suits him. There may be all sorts of other issues to be raised to suggest that he is no better than the person whom he is trying to condemn, and that he may have his own motives, other than the public interest, in giving evidence.
One would hope that in those circumstances, clause 83(1) would cover the issue being joined between the witness and the defendant. I find it astonishing, given that the central issue in 90 per cent. of cases will be whether the witness is to be believed on a particular matter, that that is not expressly included in the provision as one of the grounds on which evidence of the witness's bad character can be adduced, and on which he can be cross-examined.
I am glad that two amendments have been selected. I admit that amendment No. 387 might give rise to an argument that the use of the word ''important'' is not sufficiently strong to ground the judge's discretion. I want to make it clear that if the defendant wanted to say that the witness was lying about some peripheral issue that was completely irrelevant to the main issue between the parties, the judge would be entitled to say, ''I am not going to allow you to cross-examine him as to character on that. It is wholly irrelevant to the issues that the jury must decide.''
However, the moment evidence of bad character becomes relevant, because it is important in establishing whether the witness can be believed, the right to cross-examine the witness on his previous bad character must be preserved. If we do not allow it, and
Column Number: 564
permit the defendant to be forbidden to do that, I have the gravest doubt that the measure will pass the scrutiny of the European convention on human rights. It is salient and central that someone should be allowed to challenge witness evidence brought against him. I know that we have some interesting, indeed, controversial, exceptions on matters such as previous sexual history, but the argument in that context is that that is not an issue of character of any relevance—although the hon. and learned Member for Redcar (Vera Baird), who is not in her place at the moment, made some interesting points about that.
Perhaps a witness says, ''I saw the defendant go into the shop''—that he is accused of burgling—''at 2.58 pm,'' and the defendant says, ''This man knows me very well; there cannot be a mistake. He is telling lies about me.'' His counsel may then want to explain what those lies are and why the man should not be believed. That evidence must be admitted. If clause 83 would prevent that, we must make jolly sure that it does not.
Amendment No. 435 provides an alternative route to achieve the same end. The Committee may prefer it. It introduces into subsection (1) the words
''in relation to the credibility of any evidence which that person has provided and which relates to such a matter''—
which would be a matter that was explanatory or had ''substantial probative value''. Somehow or another we must specify the likely circumstance in which the provision would be relevant. My anxiety is that there is something nebulous about the descriptions of evidence admissible under clause 83(1), which state that it is ''important explanatory evidence'' or that it ''has substantial probative value''. They are in the ''How long is piece of string?'' category. We must be a little more precise. If someone claims that a witness is lying on an issue that is relevant in the case, and is not peripheral to the matters that the jury must decide, the right to cross-examine on character must be explicitly preserved. If it is not, the right to a fair trial will go out of the window.
|
