Joint Committee on Human Rights Eleventh Report

2 Further consideration of matters already reported on

Evidence of bad character

8.  In our Second Report, we drew attention to three matters in particular.

9.  First, we were worried about the very wide range of types of evidence that would be admissible as evidence of bad character under clause 90(1) (previously clause 82(1)), including both previous convictions and other evidence "which shows or tends to show that—(a) he has committed the offence, or (b) 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". We noted that this could permit a generalised attack on a defendant's or witness's morals, and undermine the presumption of innocence on the basis of vague and impressionistic evidence as to matters on which moral opinions may differ.[11] We took the view that it would be very difficult for the court to discharge its responsibility for protecting the defendant's right to a fair hearing in a reliable and consistent manner. For these reasons we considered that the definition of bad character evidence represented a threat to the right to a fair hearing under ECHR Article 6. We recommended that the admissible evidence of bad character should be limited to evidence of previous convictions.[12]

10.  In his oral evidence, the Minister of State denied that the new definition would threaten the right to a fair hearing. He defended the formulation of potentially admissible evidence in clause 90(1) on three grounds. First, he said that the types of evidence falling within clause 90(1) would already be potentially admissible as evidence of bad character in criminal proceedings under the Criminal Evidence Act 1898.[13] Secondly, he pointed out that no evidence would be admissible merely because it tends to show that the person has behaved in a way that might be viewed with disapproval by a reasonable person. It would also have to satisfy one of the tests set out in clause 92 (formerly clause 84) in relation to evidence of the bad character of a non-defendant, or clause 93 (formerly clause 85) in relation to evidence of the bad character of a defendant.[14] Thirdly, he noted that the trial judge would be required not to admit the evidence under certain heads of clause 93(1) if the defendant objects and it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, taking account particularly of the length of time which elapsed between the matters to which the evidence relates and the matters forming the subject of the offence charged.[15]

11.  We are unconvinced by the suggestion that the Bill would not extend the range of matters which could be admitted as evidence of bad character. Furthermore, we think that the range of purposes for which the evidence could be admitted is being unjustifiably extended. Under the law at present, evidence of a defendant's previous conduct, unrelated to the subject matter of the charge, is admissible if the previous conduct was so distinctive and so similar to that alleged in the current charge that it shows such a consistent way of working as to be relevant evidence of the defendant's guilt in relation to the current charge. Evidence of past conduct is also admissible at present if it is relevant to the present charge because it tends to show that the witness is not to be believed on oath: in other words, it goes to his credit or credibility. There is no power to admit evidence of past conduct merely because it demonstrates a propensity to act in a certain way, unless that either tends to prove that the defendant did the acts charged on the present occasion or cannot be believed when giving evidence on oath.[16] Even if evidence passes these tests, the court has a wide discretion to exclude it if, on balance, its legitimate impact would be accompanied by a serious threat to the fairness of the trial by reason of its prejudicial potential. Yet the extraordinary breadth of clause 90(1)(b), encompassing any evidence which "shows or tends to show that … the person 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", goes well beyond anything necessary either to establish guilt or to show whether the person is worthy of belief when giving evidence.

12.  The Minister's second point, that the evidence would need to satisfy one of the tests in clause 92 or clause 93 in order to be admissible, is more persuasive in principle. In relation to evidence of a defendant's bad character, other than convictions, we accept that it would have to be relevant to an issue in the case (under clause 93(1)(c), (e), (f) or (g)), or to be adduced by the defendant or with the defendant's agreement (under clause 93(1)(a) or (b)), or to be admissible as part of a 'tit-for-tat' process after the defendant has attacked the character of another person (under clause 93(1)(h)). However, we draw attention to three points.

13.  First, in relation to admissibility of evidence of bad character on the 'tit-for-tat' basis, the Bill (unlike the present law) does not limit admissibility to evidence of the defendant's credibility as a witness. It appears that it would be acceptable for evidence of general disposition admitted on this basis to be treated by a jury as if it were evidence of guilt, not merely evidence of unreliability as a witness, even if it is not evidence of a distinctive pattern of criminal working methods. To some extent, it might be possible to exclude evidence of a person's general disposition in the exercise of the court's duty to protect the fairness of the trial (under clause 93(3)). However, we do not accept that it is proper for this to be left to a court's impressionistic assessment of the balance of fairness. We consider that there is a risk of compromising the right to a fair hearing by admitting irrelevant evidence in some circumstances. (We say more about this below.) We draw the matter to the attention of each House.

14.  Secondly, in relation to the admissibility of previous convictions, we note that the Bill would allow them to be admitted under clause 93(1)(d) whether or not they were relevant either to the facts of the offence charged or to the credibility of the defendant as a witness. When we asked the Minister about this, he suggested that the previous convictions could be excluded by the court in order to preserve the fairness of the trial under clause 93(3), and that the effect of the clause would merely be to allow previous convictions to be admitted unless the defendant objects, in which case the court would have to balance the relevance of the convictions against their prejudicial impact.[17] We will have more to say about clause 93(3). For the moment, we only note that clause 93(1) on a natural reading makes it tolerably clear that there is no need for a conviction to be relevant in order for it to be presumptively admissible. If it were relevant to any issue, it would fall within clause 93(1)(c), (e), (f) or (g). The clear implication of clause 93(1)(d), therefore, is that convictions would be presumed to be admissible even if they are not relevant to any matter in the case.

15.  We made this point in our Second Report.[18] Although the Minister had told us in writing that the Government was "perfectly willing to make … clear that irrelevant evidence should almost inevitably be excluded", we expressed the view that it should never be admissible, and recommended that the clause should be amended to make that clear on the face of the Bill.[19] We remain of that view. We are fortified in our opinion by another important consideration. Around one-third of the adult male population has at least one criminal conviction, usually obtained before the age of 30. A provision allowing previous convictions to be introduced as evidence on future charge, without limit as to time or relevance, would risk prejudicing people's reputations and relationships, as well as the fairness of their trials, for no clear purpose. We do not agree with the Minister that judicial discretion provides adequate protection.[20]

16.  We conclude that there is a significant risk of unfairness resulting from provisions which, in our view, are likely to indicate clearly to courts that previous convictions should be admitted in evidence even if they are irrelevant. We draw this to the attention of each House.

17.  Thirdly, the Minister relied on the court's duty under clause 93(3) not to admit evidence if admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. He pointed out that clause 93(3) expressly states that it is to apply to previous convictions tendered as evidence under clause 93(1)(d), and thought that a court ought to apply a balancing test to such convictions, admitting them only if their relevance outweighed their prejudicial effect on the jury's view of the defendant.[21] We do not share the Minister's confidence that that is the effect of the clause. We have already noted that there is no requirement for convictions to be relevant in order to be admissible under clause 93(1)(d), and that the Government has implicitly accepted that sometimes, however rarely, it envisages irrelevant convictions being admitted. That being so, a court applying clause 93(3) to evidence of previous convictions would be in a difficult situation. It could not start from the position that some relevance is needed in order to outweigh the prejudicial effect of previous convictions and justify admitting the convictions, because Parliament would have shown, by its express words, that in at least some cases no relevance was to be needed.

18.  How, then, would a court apply clause 93(3)? We fear that there is a real risk that it would defer to what would appear to be Parliament's considered view that no relevance is needed before convictions are admissible, and would merely look to see whether the defendant could be given a trial that is as fair as possible given that this prejudicial material had been admitted. The court might, for example, say that any unfairness could be minimised by giving an appropriate direction to the jury about the need for caution before giving much weight to the evidence.

19.  We consider that the result would be a threat to the fairness of the trial, giving rise to a risk of violating ECHR Article 6.1. We draw this matter to the attention of each House.

20.  For these reasons, we conclude that these provisions as currently drafted give rise to a threat to the fairness of a trial within the meaning of ECHR Article 6 by allowing evidence of bad character to be admitted without proper regard to its evidential value, and in particular by requiring irrelevant but highly prejudicial evidence of previous convictions to be admitted in some circumstances. We draw this to the attention of each House.

21.  In oral evidence, we raised with the Minister a further question about these provisions: whether clause 92, governing the circumstances in which evidence of a non-defendant's bad character could be adduced, would compromise the protection for people claiming to be victims of alleged sexual assaults under section 41 of the Youth Justice and Criminal Evidence Act 1999. The Minister undertook to write to us after making inquiries about amendments which might have been introduced to clause 92 on Report in the House of Commons.[22] In his subsequent letter to our Chair,[23] the Minister confirmed that an amendment had been made to make it clear that the provisions relating to evidence of bad character do not affect the rules restricting evidence of, and questioning in relation to, previous sexual conduct under section 41 of the Act of 1999.[24] We welcome this.

Protection of the property of detainees in police stations

22.  Clause 6 of the Bill would remove from section 54(1) of PACE the requirement that the custody officer should record, or cause to be recorded, all property in the possession of a person detained in custody at a police station. In our Second Report, we expressed concern about the impact of this on safeguards for the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR ('P1/1'), and the risk that other detainees and police officers might more easily be subject to allegations of theft or damage to property. We therefore recommended that the police should continue to be required to keep a record of, at least, property taken from a detainee, that it should form part of the custody record, and that the detainee should sign the record or, if he or she refuses to sign, that fact should itself be recorded in the custody record. In our view, this was necessary both to give adequate protection to the right to peaceful enjoyment of possessions under ECHR P1/1 and to safeguard police officers and other detainees against unfounded allegations of theft of or damage to the detainee's property.[25]

23.  The provision was not amended during its subsequent stages in the House of Commons. When the Minister gave evidence to us, we asked him why the Government was not yet prepared to include adequate protection on the face of the Bill. He pointed out the need to relieve the police of unnecessary record-keeping, while ensuring that appropriate records were kept where necessary. The Government's view was that it would be best to strike the balance in guidance rather than on the face of the Bill.[26]

24.  We are concerned about this, for two reasons. First, it is not always immediately clear what property is important, and needs to be recorded. A person's possessions might have unexpected value, either in monetary terms or as evidence in a subsequent trial. For example, an alibi might depend on a humble bus ticket, the importance of which might not become obvious until later in the investigation. One might say that it is excessive to require the police to record every bus ticket in the possession of a detainee, but it might turn out to be an important safeguard against later disputes about the existence of the ticket.[27]

25.  Secondly, providing guidance to the police does not necessarily offer an adequate safeguard for the rights of the detainee under P1/1. Article 13 of the ECHR requires that there should be an effective remedy before a national authority for a violation of a Convention right. This Article binds the United Kingdom in international law, although it was not made part of national law by the Human Rights Act 1998. Guidance does not have the force of law, and breach of guidance would not allow an aggrieved person to obtain a legal remedy. If it were included in the substantive provisions of a Code of Practice made under PACE, a court would have to take it into account when deciding any question to which it becomes relevant, but it would not on its own give rise to a cause of action, and breach by a police officer of a provision in the PACE Codes of Practice is not any longer a disciplinary offence. If it were contained in one of the Notes for Guidance published in the Codes of Practice, it would not even have that much legal force, since the Notes for Guidance do not form part of the Code.

26.  We therefore remain of the view that clause 6 of the Bill should be either omitted or amended to ensure that there is adequate legally enforceable protection for rights under P1/1, particularly as it has become increasingly clear to us that the information contained in a detainee's custody record may often effectively determine the outcome of a criminal trial,[28] engaging the right to a fair hearing under ECHR Article 6 as well as the right to the peaceful enjoyment of possessions under P1/1. At the very least, there should be a statutory requirement to keep all property taken from a detainee in a sealed bag, and to keep a list of anything left in the possession of the detainee if the detainee or his or her legal representative requests that it be done.

Double jeopardy: clause 72

27.  In our Second Report of 2002-03, we accepted that proposals currently in Part 10 of the Bill for allowing a person acquitted on one occasion to be tried again would, as then drafted, be likely to be compatible with human rights. We reached this conclusion on the basis that the power to order a second trial could be exercised only by the Court of Appeal, and would be limited to circumstances in which there is compelling evidence against the defendant which, under what was then clause 66(2) of the Bill, 'was not available or known to an officer or prosecutor at the time of the acquittal'.[29]

28.  On Report in the House of Commons, certain amendments proposed by the Government were accepted. One of these changed the definition of 'new evidence' in what is now clause 72(2) of the Bill. It would make it possible to reopen a criminal trial on the basis of evidence which 'was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).' In other words, following an acquittal it would be possible for the Court of Appeal to allow a further trial to allow evidence to be adduced which could have been, but was not, used in the original trial. A further amendment to what is now clause 73 would require the Court of Appeal, when deciding whether it is in the interests of justice to order a new trial, to consider (among other things) whether the evidence could have been available sooner had an officer or prosecutor acted with due expedition, and more generally whether an officer or prosecutor has failed to act with due diligence or expedition at any time after the power to apply for a new trial becomes available. However, the Court of Appeal would still have power to order a new trial where evidence was available at the time of the original acquittal, even if there has been a lack of due diligence or expedition, taking account of other factors.

29.  We have reconsidered the human rights implications of Part 10 of the Bill in the light of these amendments. It seems to us that, as amended, the provisions appear likely to be incompatible with ICCPR Article 14.7, which provides: 'No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.' This Article binds the UK in international law. It has not been introduced to national law in the UK. There was no need to do so: the rule against double jeopardy is currently entirely compatible with it. The Bill's provisions could be incompatible with the obligation in international law. The UN Human Rights Committee has accepted that the reopening or resumption of a criminal trial in exceptional circumstances might be acceptable, but would not sanction a straightforward retrial.[30] In our Second Report, we accepted that newly available and compelling new evidence might fall within the former category.[31] If the evidence in question is not new, this is very doubtful.

30.  Another relevant instrument is Article 4 of Protocol 7 to the ECHR ('P7/4'). The UK has not ratified this Protocol, and so is not bound by it in international or national law, but HMG has said that it intends to ratify it. The terms of P7/4 allow greater leeway to the state than the ICCPR appears to do. While P7/4.1 is in effect the same as ICCPR Article 14.7, P7/4.2 continues, 'The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.'

31.  Although P7/4 does not bind the UK, and the more restrictive terms of ICCPR Article 14.7 do, we were prepared in our Second Report to assume (in favour of the Government) that the proviso to P7/4 would be likely to be read into ICCPR Article 14.7, because of the UN Human Rights Committee's concession that resuming a criminal trial might be acceptable in exceptional circumstances. We therefore examined the case-law of the European Court of Human Rights on P7/4, and concluded that the Bill as originally drafted was compatible with it as long the new evidence is 'evidence of new or newly discovered facts'. [32] This approach was in line with the recommendations of the Law Commission on which Part 10 of the Bill was originally based.

32.  As the amended version of the Bill seemed to give rise to a serious danger of an incompatibility with a human right if a case were to be reopened for the sake of airing evidence which had been available at the time of the first trial, we asked the Minister, when he gave evidence to us, why the Government considered that the new provisions would be compatible with ICCPR Article 14.7 (read in the light of ECHR P7/4). He replied that the Government's objective had not changed. It still intended that cases should be reopened only in exceptional circumstances where there is new or newly discovered evidence. But it had proved difficult to find a test which covered evidence which had existed before only where it could not have been found, or its significance could not have been understood at the time, even with reasonable diligence on the part of officers and prosecutors. The Government had decided that the best approach was to expand the meaning of 'new evidence', and to rely on the need for it to be compelling, coupled with a new emphasis on the importance of officers and prosecutors having acting with due diligence and expedition, to weed out cases where the original investigation or prosecution had simply been conducted in a sloppy way.[33]

33.  The Minister accepted that the new test would rely on judicial discretion after an assessment of the degree of diligence and expedition shown by officers and prosecutors in relation to the evidence. Nevertheless, he suggested that it would provide a better way of achieving the goal of ensuring that only newly available evidence could form a basis for reopening a case than to demand that the evidence should not have been available at the time of the original trial. Eliminating the need for the Court of Appeal to decide whether evidence had been available or known to an officer or prosecutor at the time of the acquittal would avoid difficult arguments about the availability of evidence or the knowledge of officers and prosecutors at a time in the distant past.[34]

34.  We consider that the Government's new approach, reflected in what are now clauses 72(2) and 73(2)(c) and (d) of the Bill, is likely to lead to incompatibility with ICCPR Article 14.7, even interpreted (as we interpreted it in our Second Report) in the way most favourable to the Government. It is not satisfactory to rely on judicial discretion to ensure that a human right is respected. The right in question is the right not to be tried for a second time for an offence save in exceptional circumstances where the case is reopened in accordance with a legal procedure because there is new evidence. Clauses 72(2) and 73(2) leave open the possibility that the court might use its discretion to allow a case to be reopened in a range of circumstances, including the following:

a)  where evidence that was available was inadmissible at the time of the original trial, but the law has subsequently been amended to allow the evidence to be admissible.[35] For example, hearsay evidence or evidence of bad character might have become admissible by virtue of the provisions of Part 11 of the Bill;

b)  where the prosecution decided not to adduce admissible evidence at the original trial for sound tactical reasons, in circumstances that did not amount to a lack of diligence or expedition on their part;

c)  where the evidence was not adduced at the earlier trial, and this was because of a lack of diligence or expedition on the part of an officer or prosecutor, but the Court of Appeal decides in its discretion that the case should be reopened to allow the evidence to be used, because the seriousness of the crime and the likelihood of being able to give a fair hearing to the accused mean that it is in the interests of justice to do so.

35.  When exercising its discretion, the Court of Appeal would not be required by the Human Rights Act 1998 to act in accordance with the right under ICCPR Article 14.7, or that under ECHR P7/4, because that Act does not make either of them a directly enforceable part of the law in the United Kingdom.

36.  We therefore consider that the Bill as currently drafted gives rise to a significant threat to the right under ICCPR Article 14.7, which binds the United Kingdom in international law. We also think that the current version of the Bill would fail to achieve the Government's object of avoiding legal arguments. Instead of disputes about whether evidence was known about at the time of the original trial, there would probably be long arguments about whether the general conduct of officers and prosecutors, both at the time of the original trial and subsequently (and particularly after the coming into force of Part 10 of the Bill), showed a lack of due diligence or of expedition. It therefore seems to us that the creation of a threat to a human right would not be balanced by any compensating benefit. We draw this to the attention of each House.

37.  Furthermore, we note that the title of Part 10 of the Bill is 'Retrial for serious offences', and the word 'retried' is used in the body of the clauses.[36] It is quite clear, both from ICCPR Article 14.7 and from ECHR P7/4, that a retrial after an acquittal is never permitted by international law. What may be allowed in limited and exceptional circumstances is the reopening of a case following the judicial annulment of the earlier acquittal.

38.  In order to avoid the risk that the United Kingdom might unnecessarily appear to the international community to be indifferent to the requirements of international human rights law, we recommend that the title of Part 10 should be changed to 'Reopening trials after acquittal of serious offences', and that 'retried' and similar terms should similarly be replaced wherever they occur. We draw this matter to the attention of each House.

11   Ibid., para. 13 Back

12   Ibid., paras. 14-15 Back

13   QQ 8, 9, 14, 15, 16, 18 Back

14   QQ 3, 5, 10 Back

15   QQ 6, 37, 43, 44, 47, 49, 52, 54, 55, 58-65 Back

16   See, e.g., Maxwell v. DPP (1934) 24 Cr. App. R. 152,HL, at 173 per Viscount Sankey LC; Selvey v. DPP [1970] AC 304, [1968] 2 All ER 497, HL; R. v. McLeod [1994] 1 WLR 1500, [1994] 2 All ER 254, CA Back

17   QQ. 47, 49 Back

18   Second Report, op cit., para. 16 Back

19   Ibid., para. 18 Back

20   QQ. 27-36 Back

21   QQ. 47, 51, 52 Back

22   QQ. 66-70 Back

23   See Appendix 5 Back

24   See now cl. 105(3)(a) Back

25   Second Report, op cit., para. 10 Back

26   QQ 102, 103 Back

27   QQ 104-114 Back

28   QQ 104-111 Back

29   Second Report, op cit., paras. 43-52 Back

30   General Comment 13.21, para. 19 Back

31   Second Report, op cit., para. 49 Back

32   ibid., paras. 50-52 Back

33   Q. 82 Back

34   QQ. 82-85 Back

35   See cl. 75(5) Back

36   See, e.g., cl. 70(1)(b) Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 13 June 2003