Criminal Justice Bill

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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

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balance 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

clause 110, page 65, line 45, after 'otherwise)', insert

'including the power to exclude prosecution evidence where its prejudicial effect outweighs its probative value.'.

The explanatory notes on the clause state:

''Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.''

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:

''any other power of a court to exclude evidence at its discretion''.

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

''any other power of a court''.

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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.

Clause 112

Confessions

Mr. Grieve: I beg to move amendment No. 401, in

clause 112, page 67, line 13, leave out

'on the balance of probabilities'.

The clause provides for dealing with confessions. In particular, subsection (3) says:

''Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above''—

that is, not obtained by oppression or in consequence of anything else—

''to be proved in the proceedings on the balance of probabilities.''

The amendment would delete the reference to the balance of probabilities and require the confession to be proved. I am not sure whether, in practice, that would make a huge difference, but the reason for tabling it is to enable us to examine the issues raised by the clause.

As I understand it, the provision relates to the possibility of a co-accused's confession being brought before the court on the application of a co-accused for his own purposes in circumstances where the accused may at some stage have claimed that that confession was improperly extracted from him. That raises an interesting and complex tangle of possibilities. I wondered whether the balance of probabilities was the correct test, although I acknowledge that, generally speaking, on a voir dire, if one were seeking to exclude evidence, that might be the proper test to apply. I should be grateful if the Minister would explain how he expects the provision to work.

Mr. Wills: I have some sympathy with the hon. Gentleman. Clearly these are difficult cases. It is possible to imagine a scenario in which a group of defendants might seek to coerce the weakest member of the group into confessing that he or she has committed the crime, so that they can escape justice. However, I am sure that the courts will always be alive to that risk, and the judge will surely wish to satisfy himself, before the confession can go in, that it was obtained voluntarily.

It is also a well-established principle that, whenever the accused bears a burden of proof, in no case should

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he or she be called on to prove an issue beyond reasonable doubt. The standard of proof is on the balance of probabilities. That principle has applied when the court needs to satisfy itself on an issue before a certain piece of evidence can be admitted. For example, when the defence currently seek to admit a hearsay statement under the Criminal Justice Act 1988, it need only prove that that requirement is met on the balance of probabilities. The Law Commission examined the issue and concluded that the lower standard of proof should be applicable to the defendant.

I have listened to the hon. Gentleman, but I am not persuaded that it would be right to make such a change. We have carefully considered the issue and I hope that he will be persuaded to withdraw the amendment.

 

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Prepared 28 January 2003