Thursday 22 May 2003

LORD FALCONER OF THOROTON

  Chairman: Welcome, Minister, to this meeting of the Joint Committee on Human Rights. It is a pleasure to have you here with us. It is obviously no surprise to you that the Joint Committee has expressed some concerns about the Criminal Justice Bill because, of course, we have now referred to it on a number of occasions in our reports, principally at the end of January. The range of issues about which we are concerned in terms of potential violation of human rights are known to you and are in the public domain. I think the one about which there was probably the most concern expressed was the admissibility of evidence of bad character, particularly focusing on the broad range of types of evidence that would be admissible and to what degree that is going to prove anything—I am trying not to use legal language—and to what degree it would prejudice any defendant.

Q1  Vera Baird: Minister, could we look at clause 82, which is the definition of "bad character": "Evidence which shows or tends to show that—(a) he has committed an offence [other than the one with which he is charged, and not including an offence in connection with the investigation of the offence of which he is charged]".

  Lord Falconer of Thoroton: We have the Bill after the Committee but not after report, so we are looking at the same one.

Q2  Vera Baird: It has 4 March on the back.

Lord Falconer of Thoroton: Yes.

Q3  Vera Baird: Defining bad character: "He has committed an offence", not one connected with the one with which he is charged, or "he is 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". Our concern is that this might allow evidence that has little or probably in some cases no probative value to go in in connection with either the defendant or the witness. We are concerned that might interfere with Article 8 rights and threatens the defendant's right to a fair hearing. Do you think it is sufficiently, precisely couched to ensure that any relevant material is considered?

Lord Falconer of Thoroton: There are headings of the bad character evidence which are described by reference to relevance, and the most obvious one in relation to relevance is where it is agreed between the parties and there is no requirement specifically of relevance and the fair trial test does not apply to that. To use the word "relevance" is not strictly accurate to all of the headings. We think it is okay because, for example, if the parties have agreed that it should go in it cannot infringe the rights of the defendant. Where there are issues of relevance then the fair trial test applies.

Q4  Vera Baird: You are talking of the fair trial test, which is to be found in 85(3).

Lord Falconer of Thoroton: Yes.

Q5  Vera Baird: Which only applies to a limited number. Could we stick to 82, rather than coming to the categories of admissibility, looking at the breadth of the evidence of bad character that is possible to put in. Is there not a real danger that it is couched in such wide terms that it is going to impinge upon private life in a way that ought not to be happening in trials?

Lord Falconer of Thoroton: No. 82 is a definition of the bad character to which the provisions apply. If you are not within clause 82 then the ordinary law will apply as to whether the evidence goes in or not. There needs to be a definition first of all. You still have to get yourself within clause 85(1) and where relevant 85(3) before the evidence goes in. We think that is satisfactory protection.

Q6  Vera Baird: You think it is fine to cast 82 as wide as imaginable, it is very hard to think of anything that would not be admissible under 82?

Lord Falconer of Thoroton: If you do not cast it that wide then you might well end up in a situation where there was other evidence of bad character to which 85(3) would not apply. Let me give you an example of that, suppose you somehow excluded previous acquittals from the evidence that was defined as bad character evidence under clause 82. I know there is a school of thought that says exclude acquittals, if you excluded acquittals you might end up with a situation where evidence of a previous acquittal could go in without the protection of 85(3).

Q7  Vera Baird: Are you saying that the power to put it in exists in some other way?

Lord Falconer of Thoroton: It might be argued that it is relevant. It could be argued this scheme does not apply and therefore it has to be looked at without reference to all of this.

Q8  Vera Baird: You are widening the definition of bad character as defined in clause 82, are you not?

Lord Falconer of Thoroton: We are increasing the circumstances in which bad character can go in in a trial. We are providing a coherent series of safeguards before it goes in. You are right to say that discretion does not apply to all of the categories under 85(1) but we believe those categories to which it does not apply do not require that protection.

Q9  Vera Baird: I do not want to get bogged down on this but the current situation is that what is admissible as bad character now is far narrower than will be admissible in 82. There is existing judicial discretion to exclude anything which would impact on the fairness of a trial now which this legislation will not affect. The net effect is this, you are widening the ambit of the definition of bad character and limiting the way a judge can exclude it.

Lord Falconer of Thoroton: I do not think that is a fair assessment of what we have done. The headings in respect of which bad character can go in are pretty similar, so acquittals can potentially go in, not the actual fact of the acquittal but the facts underlining the acquittal. What we are doing is in effect expanding each of those headings so that more will go in under those headings but we are providing a coherent series of safeguards to ensure that it is properly dealt with.

Q10  Vera Baird: I would have thought that 82(1)(b) was wider than anything that is available now, particularly against the defence?

Lord Falconer of Thoroton: Your questions are on a false premiss, you are looking at the definition of bad character in a vacuum by simply focusing on 82 and you are not asking yourself: "That is the definition of bad character, when does it go in?" The debate never gets off the ground if you say: "What could show bad character?" A whole range of things could show bad character. That is not the issue. The issue is when does that sort of evidence go into court. With respect simply to focus on clause 82 does not get you very far.

Q11  Vera Baird: You are wrong.

Lord Falconer of Thoroton: Sorry.

Q12  Vera Baird: You have widened the definition of bad character in 82, have you not? Bad character under 82(1)(b) now would be eligible to be considered against the criteria in 84 in a way that no judge would now consider admitting it.

Lord Falconer of Thoroton: No, I think you are absolutely wrong about that: "He 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".

Q13  Vera Baird: Yes.

Lord Falconer of Thoroton: Suppose the defendant's character goes in now under the 1898 Act because he has attacked a prosecution witness and the judge concludes that the defendant's character should then go in or there is an attack between defendants on their character and it goes in, evidence that the defendant has behaved in accordance with (b) would be admissible in those circumstances.

Q14  Vera Baird: I am afraid we are going to have to differ about that. He says: "It would not in my opinion be couched as widely". Have you read the report we did about this, setting out the possibilities for the kind of behaviour that could be put in there, which is not relevant and nothing to do with acquittal or what is available under the 1898 legislation, which is only being charged.

Lord Falconer of Thoroton: If I am a defendant and my character goes in the prosecution is entitled to question me about aspects of my bad character that go beyond convictions.

Q15  Vera Baird: Certainly, but not so wide as "Conduct that might be viewed with disapproval by a reasonable person", which opens it up way beyond criminal behaviour, it opens it up to prejudice by a jury against a defendant by putting in unpleasant facts which are nothing to with criminality but which may make the jury dislike him. That is the danger, is it not?

Lord Falconer of Thoroton: It is currently not restricted to criminality.

Q16  Vera Baird: No judge would allow in material which would simply be prejudicial in the ways that I have said, non-criminal prejudicial.

Lord Falconer of Thoroton: Character is currently indivisible. If bad character can be demonstrated by non-criminal acts it is potentially admissible. I am not saying that it would go in in every case. I feel I am being drawn into a lawyers debate. My basic point—

Q17  Vera Baird: It is very straightforward and common sense, it is not a lawyers debate.

Lord Falconer of Thoroton: Sorry.

Q18  Vera Baird: Do you accept this has been widened? I do not know if you do. It seems perfectly clear it has been widened. The next test is to look at ways in which it is admissible and if they have also been widened, which they have.

Lord Falconer of Thoroton: I accept that bad character evidence will go in more often. I do not accept what constitutes bad character evidence has necessarily been increased in its ambit.

Q19  Vera Baird: If you now want to depict an individual as a type of person by making allusions to the way he has behaved in the past of the kind of conduct that might be viewed with disapproval by a reasonable person Parliament said that you can as long as you can get through the hurdles in 84. No judge would permit that to happen, stereotyping an individual, unless it was probative and there is no requirement to be probative if we move to 84.

Lord Falconer of Thoroton: I do not accept the proposition about the current position, as I am saying the circumstances in which the bad character will go in are wider but you have mis-characterised, in my view, the effect of 82(1)(b). The evidence has to fit in, in a way that is not just minimally reflective of somebody's character it has to satisfy the definition in (b).