|Criminal Justice Bill
Mr. Wills: I understand why the hon. Gentleman has drafted the amendments, which he has explained very well. We believe that they are unnecessary and will resist them, but I shall try to explain why in some detail, because they concern important issues of principle.
Clause 110 enables a court to exclude hearsay evidence, which is otherwise permissible, if on balance the evidence is more likely to waste the court's time than assist it in determining the issues in a case. In other words, the clause is aimed at weak evidence that adds little to a case but would not make a trial unfair. Evidence that would cause unfairness would be excluded under section 78 of the Police and Criminal Evidence Act 1984, which, as clause 110(2) clarifies, applies to the evidence.
As I have mentioned, the clause is not about evidence that would cause a trial to be unfair. Instead, it deals with evidence that could be fairly admitted but is more likely to waste the court's time than to assist it, which is why the amendments are misconceived. In its 1996 report, the Law Commission stated that evidence that the prosecution seeks to adduce may still under our proposals be excluded by the court in the exercise of its discretion at common law or under section 78(1) of the Police and Criminal Evidence Act 1984.
That does not, however, cover superfluous evidence, which would not make a trial unfair, and there is no control on the quantity of defence hearsay evidence. The new power to exclude superfluous hearsay would be available in relation to all hearsay evidence that would otherwise be admissible under our recommended scheme. We envisage that the exercise of this power will be appropriate only in exceptional cases where the probative value of the evidence is so slight that almost nothing is gained by admitting it. This power will help the opposing party and also ensure that the court's time is not wasted, thereby meeting the point, which concerned some respondents on consultation, that the admission of hearsay would lead to a lot of barely relevant evidence being adduced.
The new requirement in amendment No. 402 that admission would cause an unfair trial for the defendant is not therefore appropriate in the context of subsection (1). Evidence that did not meet that condition would be excluded under section 78 of PACE or the common law. The clause is concerned about wasting the court's time with a wide range of hearsay evidence that is unnecessary and, as the Law Commission said, is so slight that almost nothing is gained by admitting it.
Amendment No. 431, which relates to the question of fairness when the defendant wishes to adduce a statement, is unnecessary for a different reason: it would be contrary to the court's most basic duties to ensure a fair trial if it were to exclude evidence that a defendant wished to tender in circumstances in which it would create unfairness. The amendment is therefore superfluous.
On the other hand, amendment No. 339, which would omit the word ''substantially'' in subsection (1)(b), puts the emphasis on a greater exclusion of relevant material. The effect would be that where the
Column Number: 665balance was just in favour of exclusion, the test would be met and the evidence excluded. That is overly restrictive, given the fact that we want more relevant evidence admitted and that such evidence would not cause unfairness. The intention is to catch only evidence that does very little for the case.
I hope that that sufficiently clarifies the matter for the hon. Gentleman to withdraw the amendment.
Mr. Malins: No and yes, possibly not in that order. I am grateful to the Minister and I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heath: I beg to move amendment No. 378, in
The explanatory notes on the clause state:
The second part of that sentence is explicit in respect of subsection (2)(a), but less explicit in respect of (2)(b). The Government have a firm intention, but paragraph (b) simply refers to:
That is a sensible provision in itself, but it could produce some confusion, particularly when it is read with clause 102(2) as intimating that the common-law rule, which is expressly mentioned in the explanatory notes, might not be preserved as a result of the Bill. Our intention is that by making it explicit, there is no element of doubt that the rule survives the earlier culling process and that it remains as described in the explanatory notes. The Minister agrees that it should survive and there is no difference in our intention. The question is simply whether the Bill as drafted is sufficiently explicit in expressing that intention.
Mr. Stinchcombe: Do not the words of the clause as drafted explicitly mean that every discretionary common-law power to exclude evidence survives?
Mr. Heath: That might be the intention and I do not disagree with the hon. Gentleman, but we must be at pains to ensure that it is understood that the power, to which the explanatory notes draw attention, is part of the common-law rules that survive. That is not specific in the earlier clause. If there was a clear interplay between the two, it would not cause concern. The concern that I express is not entirely my own, but is the concern of others much better qualified than I am to consider these matters, and they have said that there is an element of doubt. I believe that, if there is an element of doubt, the Bill should be explicit rather than implicit, and I hope that the amendment will provide a remedy to that.
Mr. Wills: I am slightly baffled about why there should be an element of doubt. As my hon. Friend the Member for Wellingborough said, subsection (2)(b) refers to
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However, I am happy to offer the assurance that the clause covers those provisions. I hope that, on that basis, the Committee will accept that no amendment is needed.
Mr. Grieve: I subscribed to the amendment, but as that assurance has been put on the record, I am broadly satisfied that there is no need to pursue the matter further.
Mr. Heath: That was precisely the point of tabling the amendment: so that the Minister could say the words that he has just said. He has now said them, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 110 ordered to stand part of the Bill.
Clause 111 ordered to stand part of the Bill.
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