Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 40-59)

Thursday 22 May 2003


Q40  Vera Baird: The provision in (e) sets out that you can admit a conviction if it is relevant to an important matter in issue between the defence and the prosecution.

Lord Falconer of Thoroton: Yes.

Q41  Vera Baird: That is an okay criteria, that is the one that you want to rely on all of the time. Granted that there is (e), which allows it in if it is relevant at all what is the purpose of (d)?

Lord Falconer of Thoroton: It avoids the need for a debate about whether it fits within (e) and it automatically goes in under (d). If there is an issue about it that is dealt with under 85(3). It reduces the complexity of the process in court.

Q42  Vera Baird: If it is relevant it will go in under (e). Why would it go in if it was not relevant?

Lord Falconer of Thoroton: You do not need to debate the issue, there is a presumption that it is relevant if it comes under (d).

Q43  Vera Baird: If somebody objects under (d) what is the test that is applied?

Lord Falconer of Thoroton: 85(3). Balance relevance against prejudice effectively.

Q44  Vera Baird: That is exactly what you have to do under 85(1)(e), in that provision there is a need for a judge to decide whether it goes in.

Lord Falconer of Thoroton: In a sense there is no need to look further and see whether it is the same or similar, it goes in under 85(1)(d). This reduces the scope for argument, but if there is an issue about it the defendant can raise it under 85(3).

Q45  Vera Baird: 85(1)(e) says that it goes in if it is relevant and there can be a debate about that. Relevance in that category includes relevance to the propensity.

Lord Falconer of Thoroton: This is no criticism, obviously, but lawyers debate relevance quite a lot. Is it worthwhile putting in a heading where that debate is going to take place, when if there is in no real issue about it then it will just go in under 85(1)(d).

Q46  Vera Baird: When you say "no issue about it" it will go in because all parties to the proceedings can agree that it goes in under 85(1)(a).

Lord Falconer of Thoroton: I rather envisaged 85(1)(a) is rather different. Agreement on the one hand is different from not objecting on the other.

Q47  Vera Baird: If, as you suggested, there is no objection then it implies there is an agreement. If there is an issue about its relevance it can be done under (e). There is no purposes to (d), is there, except to put them in as a matter of course?

Lord Falconer of Thoroton: They do not go in as a matter of course because 85(3) provides a basis for them to be excluded. The reason why I am saying that is because 85(1)(d) sends the signal, if it is the same or similar it normally goes in, but 85(3) is still there, and there the balance between relevance and prejudice can be debated. It makes it simpler and more straightforward and it avoids unnecessary legal debate.

Q48  Vera Baird: Even as you describe an application under 85(1)(d) to put them in as a matter of course and indicate, as you do, that will trigger the judicial test—

Lord Falconer of Thoroton: If the defendant raised it.

Q49  Vera Baird: —you then talk about the issue of relevance being the point, relevance is the point under (e), so are you really saying that (d) and (e) are the same?

Lord Falconer of Thoroton: I am saying that (d) requires no consideration other than seeing whether it is the same or similar before it goes in. The reason we have done that is we want to send the signal that normally it would go in. That reduces the debate in court, because lawyers legitimately argue about relevance a lot in court, and if the defendant wants to raise it he raises it under 85(3).

Q50  Vera Baird: The contrary effect is going to occur from (d), is it not? If you put before a judge the criteria in (a), which we agree is an appropriate one—

Lord Falconer of Thoroton: Agreed.

Q51  Vera Baird: —should a previous conviction go in if it is relevant, that is the issue we need to look at, that is where the judge will exercise his discretion under (3), that is where all of arguments you are applying to (e) and (d) will be heard, I think, what will happen is that since you put them in as a matter of course under (d), relevant or irrelevant, that will set a benchmark for a judge who will say: "Since Parliament says they are admissible, relevant or irrelevant under (d) on what basis can I exclude them?"

Lord Falconer of Thoroton: You have to balance relevance against prejudicial effect.

Q52  Vera Baird: You do that under (e). Since you have (d) as well which if they are not relevant on the face of (d), and (d) says nothing about relevance, it says they go in because they are evidence of a conviction for an offence of the same description or the same category. No relevance to probative value, nothing. Parliament said they go in even though they are irrelevant in (d) what ground has the judge got to exclude them?

Lord Falconer of Thoroton: Everyone has made it clear throughout and everyone agrees that the effect of 85(3) is that you balance probative value against prejudice, that is the process that the judge will go through under 85(3). The fact that the focus is there rather than a debate under 85(1)(d) does not remove protections from the defendant.

Q53  Vera Baird: May I press you on that point one more step to say, you will be well aware that the judiciary do not regard it in the way that you described it now?

Lord Falconer of Thoroton: I am not aware of that.

Q54  Vera Baird: The judiciary by and large—I have not done a survey but I have talked to a large number of them, including some senior ones—their views are that that legislation requires previous convictions to go in just if they are similar and they will not be able to exclude them because Parliament has said they go in if they are similar. All of the tests that 85(3) permit them to use are admissible in truth to the other criteria and not to (d), (d) is set aside, put them in any way, and they will feel there is no way in which to exercise their discretion because Parliament said in they go every time. In they go.

Lord Falconer of Thoroton: I am surprised to hear that, first of all because it is explicit in the terms of the Bill that 85(3) does apply to (d), and that is in contradistinction to other sub paragraphs of 85(1) to which it does not apply. Secondly, because the wording used in 85(3) has been explicitly used so there is a balance between prejudice and probative value. Thirdly, because I believe, although I was not there, but you were, that in the committee stage of the Bill in the Commons it was made explicit by the much missed Mr Hilary Benn that that was the way it was going to be approached. Do you agree with all three points?

Q55  Vera Baird: Hilary Benn is certainly much missed, I agree with you completely. He said what you said, which is despite the fact that the provision says put them in if they are similar he said that the judiciary will nonetheless exercise discretion. There is no discretion to exercise, Minister.

Lord Falconer of Thoroton: I express exasperation at this line of questioning because 85(3) contains an explicit discretion, it is a discretion that is expressly applied to (d), it is not expressly applied to all of the other ones. Everyone agrees that the wording used in 85(3) is wording which is normally in the past been construed by a judge as meaning prejudice again probative value. It is jolly difficult to deal with your argument on the basis of that this is what I have been told by . . .

Q56  Vera Baird: I accept that. You must take it from me.

Lord Falconer of Thoroton: I am not denying they have said that.

Q57  Vera Baird: You must take it that is the way I see it, nonetheless I have had those discussions.

Lord Falconer of Thoroton: Is it not significant that there is this discretion there? Is it not significant that it is expressly applied?

Q58  Vera Baird: There is no discretion available, that is a very false juxtaposition.

Lord Falconer of Thoroton: It is not for me to ask questions but I wonder then if there is any effect in (3) being expressly applied to (d)?

Q59  Vera Baird: There is no effect in (3) being expressly applied.

Lord Falconer of Thoroton: It is your position that 85(3) in relation to (d) has no meaning.

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