| Criminal Justice Bill
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Mr. Heath: I shall briefly discuss some of the issues that the hon. Gentleman has rightly raised. If we go down the route that is proposed with respect to evidence of bad character, the most essential ingredient should be balance in the interests of justice and the proceedings. To an extent, clause 83 is an attempt to establish that balance, but as the hon. Gentleman has said, it does not do that. There is no equilibrium between the tests to be applied to evidence about a defendant and those to be applied to evidence about a non-defendant. That causes me the same concern as the hon. Gentleman. I should be happier if a subsequent definitive clause were included explaining how to interpret clause 83(1)(b)(i), which refers to
I note that clause 87 qualifies the reference in the parallel provision, clause 84(1)(e), to a
Clause 88 provides a description of a
Column Number: 565 referred to in clause 84(1)(f). However, the Bill is entirely silent on the interpretation of
as mentioned in clause 83. The credibility of a witness or the fact that they may be supplying evidence that is a tissue of lies and for which there is a clear suggestion of a motive, given their record or the circumstances of their previous behaviour, are cogent matters that should be covered in the Bill. The amendments may not necessarily be the only way to achieve that objective, but the Minister would help the Committee and improve the legislation were he to find a way to ensure that what should be considered by a court in the interests of justice was considered by a court in the interests of justice.
3 pmUnfortunately, the hon. and learned Member for Redcar is not with us this afternoon, but she made a valid point this morning about the sexual history of a witness, to which I do not think the Minister quite did justice. I see no reason why that would necessarily be excluded under the clause. As the Committee knows, I am not a lawyer and I do not have the experience of other members of the Committee of working in a legal environment, but I understand that, following gross abuses of the system in the past by counsel for the defence, it is by rules and guidance that such evidence is no longer admissible. I am not clear, given that this legislation will surely replace that ruling and guidance by statute, how that is to be preserved. Hilary Benn: It may help the hon. Gentleman and the Committee if I say that section 41 of the Youth Justice and Criminal Evidence Act 1999 sets out the circumstances in which evidence of a complainant's previous sexual history is admissible in trials for sexual offences. The Bill does not alter the situation under that Act, so where evidence about character is also evidence to which section 41 applies, it will need to meet the conditions of both sets of provisions. Mr. Heath: I am grateful to the Minister, although I would be more comfortable if that cross-reference were explicit in the Bill. Rather simplistically, I believe that statutes should be understood by those who use them, whether or not they happen to be professionals in this sphere. Mr. James Clappison (Hertsmere): The hon. Gentleman is making a very fair point. It is difficult for anyone to cross-refer to such sections and, as he said, an important reference was made this morning. Does he agree that a full reference to section 41 of the Youth Justice and Criminal Evidence Act 1999 would be helpful to those of us who do not have it at our fingertips all the time, so that we could fully understand it and where it fitted into this legislation? Mr. Heath: The hon. Gentleman makes a self-evidently important point. I hope that the Minister will take us further down that road by saying that it might be helpful to have an explicit reference in the Bill. Mr. Grieve: Dare I suggest that one reason why that reference is not explicit might be that there is an inherent contradiction between that and clause 81 on bad character? After the words Column Number: 566
at the end of clause 81(1)(b), one would have to add, ''but not if it were subject to the Youth Justice and Criminal Evidence Act 1999.'' Mr. Heath: I absolutely agree. I am glad that we have teased this information out of the Minister, because there is clearly a need for a better definition and more explicit legislation. He has not satisfied the Committee simply by asserting that two apparently blatantly contradictory pieces of legislation can co-exist safely in such a sensitive area as defining what evidence may be admissible in criminal law. I hope that the Minister and his officials will consider that. Having said that, the hon. Member for Beaconsfield (Mr. Grieve) made an excellent case for the amendments, and it remains for the Committee to hear the Minister's reply. Hilary Benn: There are a few more general points to make about the clause before I reply to the hon. Gentleman. The clause sets out the circumstances in which evidence can be given about the bad character of a non-defendant. Parties might seek to introduce such evidence for various reasons such as the credibility of a witness, which, as the hon. Member for Beaconsfield pointed out, makes their version of the events less believable. He also pointed out that the defendant might want to suggest that another person was responsible for the crime and introduce evidence of their bad character to support their suggestion. In common law, the bad character of a non-defendant is generally admissible, subject to the requirement for bare relevance. In practice, as we heard, the effect is to give parties free rein in attacking a witness's character. As the Law Commission said in its 2001 report, the current law often exposes
According to the witness satisfaction survey 2000, 40 per cent. of witnesses did not want to give evidence again because of the intimidation or the experience of going to court and being cross-examined. That is something that the Committee should be concerned about, and that we should aim to address. There is also a danger that the evidence will distort the issues in cases and so inhibit the search for truth and an accurate verdict. Only evidence that will clearly assist the court in determining the case should be admissible. The clause will offer substantial new protection to witnesses against unnecessarily wide-ranging and humiliating attacks on their character, and will ensure that only evidence that is clearly relevant is admissible. Therefore, evidence of a witness's bad character will be admissible only in carefully defined circumstances. It must have substantial probative value to matters at issue to which it is relevant. In the case of what is currently called background evidence, the evidence must be such that the jury or the court would find it impossible to understand other evidence without it, and that it would substantially affect their understanding of the case. Column Number: 567 The clause sets clear and substantive limits to the admission of such evidence. Subsection (4) makes it clear that it will not be possible to introduce such evidence without the leave of the court. The current system offers little incentive for scrutinising the evidence before it is heard, but the clause ensures the lead requirement that its relevance must be clearly articulated and established by the court before it is admitted. As we heard, the amendments would not have an identical effect. Amendment No. 387 would deal with evidence relating to specific and general credibility. Specific credibility is whether a person is to be believed in the circumstances of the case. Evidence relevant to that might include evidence that they have been bribed or had a grudge against the defendant. General credibility refers to whether a person is believable. Relevant evidence would include evidence of dishonesty and untrustworthiness. Amendment No. 435 is more focused on specific credibility alone. The distinction is not important. I hope that I can reassure the hon. Member for Beaconsfield by saying that we agree that a defendant should be able to introduce evidence to test the credibility of a witness or of their evidence, as that might have an important impact on whether their testimony is believed. However, the amendment is unnecessary, as the proposed scheme already makes that sort of evidence admissible. Clause 83(1)(b) enables evidence to be given that is probative of the matters at issue. The provision covers whether a witness is to be believed. Whether their evidence is accepted will have an important impact on whether the facts to which it relates have been proved. The evidence will therefore be admissible under the paragraph, provided that the conditions in it are met. They require in the first instance that the evidence have substantial value to the matter in issue. That would exclude trivial or marginal evidence of credibility that would have little bearing on a court's assessment of evidence or on the issues to which it relates. I note that amendment No. 387 would require the evidence to be important to credibility, and subsection (1)(b) reflects that. Sub-paragraph (ii) says that evidence of bad character may be introduced ''if and only if'' it
That ensures that important evidence concerning credibility that would affect only a marginal issue in the case would not be admissible. That is not reflected in the amendment, but it is a condition that we consider to make sound sense. Amendment No. 435 would require no particular degree of probative value of the evidence, and that reflects common law. However, the amendment would offer witnesses insubstantial protection against allegations that might affect their standing in a case. It would also allow evidence to be introduced that was of marginal value to the proceedings. We therefore consider that a requirement of substantial probative value is warranted. Evidence that is important in Column Number: 568 establishing whether a witness or their testimony is to be believed can certainly be admitted under clause 83 as it stands, and therefore the amendment is unnecessary.The higher relevance test was mentioned by the hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath). In the case of defendants, the critical test is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract it, is admitted. However, as only the defendant in the case is at risk of conviction, the test is apt for their protection only. Nevertheless, it is important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character; and it is to protect non-defendants from such attacks that a test of enhanced relevance is proposed.
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