Joint Committee On Human Rights First Report


3. LETTER FROM LORD FALCONER, MINISTER OF STATE, HOME OFFICE TO THE CHAIRMAN

CRIMINAL JUSTICE BILL

1.  Thank you for your letter of 10 December about the Criminal Justice Bill, in which you confirm that the Committee is provisionally of the opinion that most of the provisions are compatible with human rights, but has raised some points in the following areas:

    —  Safeguards for property rights when a person is taken into custody (clause 6)

    —  The right to a fair trial in the context of admitting evidence of bad character and hearsay evidence (clauses 81-98)

    —  Provisions about the disclosure of pre-sentence reports where the defendant is a child (clauses 143 and 144)

    —  A provision relating to the sharing of information when assessing risks posed by certain offenders (clause 262)

2.  As David indicated in his letter of 6 December, we are very grateful for the Committee's scrutiny of the Bill, which adds to the careful consideration that has already been given to the provisions to ensure that they are both effective and proportionate. In one of the areas identified by the Committee, i.e. the age limit in clauses 143 and 144, we agree that it would be helpful to make a change to the Bill to make quite clear that the provisions are compatible with human rights.

3.  Our comments on all the points which have been raised are as follows:

Safeguards for property rights

4.  Clause 6 amends section 54 of the Police and Criminal Evidence Act 1984 ("PACE"), and rights under Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ("Article 1").

5.  Section 54 of PACE currently requires the custody officer at a police station to ascertain and cause to be recorded everything which a person has with when he is brought to the station after arrest or committal to custody, or when he is arrested at the police station. Any record relating to an arrested person forms part of the custody record.

6.  Clause 6 of the Bill would remove the requirement to make a record of the persons possessions. It does not alter the circumstances under which property may be removed from a person in police detention.

7.  Accordingly the Department does not consider that clause 6 of the Bill engages Article 1.

8.  The Department also considers that section 54 of PACE, as prospectively amended by clause 6 of the Bill, would be compatible with Article 1. Items may only be seized and retained in a limited range of prescribed circumstances.

9.  Section 54 of PACE permits a custody officer to seize and retain a detained person's clothes and personal effects if he believes that the detained person may use them to:

    i)    cause physical injury to himself or any other person;

    ii)  damage property;

    iii)  interfere with evidence; or

    iv)  assist his escape.

10.  The custody officer may also seize and retain a detained person's clothes and personal effects if he believes, on reasonable grounds, that they are evidence relating to an offence.

11.  In most cases any items seized and retained by the custody officer will be returned to the detained person when he leaves police detention. There is therefore merely a restriction on the use of, rather than a permanent deprivation of the possessions. In those circumstances the Department does not consider that Article 1 is engaged. In any event such temporary restriction on the use of possessions is clearly in the public interest.

12.  Where items are retained following the detained person's release, for example as they are evidence relating to an offence, then such retention is in the public interest as it enables the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

Evidence of bad character

13.  In matters of evidence generally, the European Court of Human Rights has adopted the principle that the rules for the admissibility of evidence are primarily a matter for domestic law and that the question that rises under the Convention is whether the trial as a whole has been fair—Article 6. This principle extends to rules governing the use of bad character evidence and in their report "Evidence of Bad Character in Criminal Proceedings" (Law Com 273) the Law Commission note that "[whilst the use of a particular rule of evidence may cause a trial to be unfair on the facts in any system, the Strasbourg Court and Commission have not, however, established that any particular rule of evidence about bad character evidence is impermissible" (Law Com 273, para 3.5).

14.  The European Commission of Human Rights has specifically taken the view that the admissibility of previous convictions does not per se amount to a breach of Article 6 (X v Denmark Yearbook (1965) vol 8, p370). The Law Commission also note that the Court has not objected to the admission of previous convictions and that the existence of lay decision makers has not affected this (Law Com 273, para 3.8). The question, therefore, is whether situations of unfairness might arise under the proposed statutory rules.

15.  The Committee raises a concern about the bases in clause 84 for admitting evidence of a defendant's bad character—that these might allow evidence to be admitted even if it has no direct relevance to any issue in the case, undermining the fairness of a trial. Your concern focuses on the grounds set out in clause 84(1)(b), (d), (g) and (h).

16.  As far as (b) is concerned, there may have been a misunderstanding. This only applies where "the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it" It would not therefore cover the examples raised in your letter where the prosecution has asked the defendant the question. Moreover, without this provision, the defendant would be restricted in the evidence that he may wish to adduce in support of his defence, which we do not think would be appropriate. A defendant might, for example, wish to put his own record in evidence at the outset of his case as he might perceive this to be less damaging than the record emerging in cross-examination. It is also not unknown for a defendant to put his record in evidence to demonstrate, for example, on a charge of indecent assault, that whilst he might be a burglar, he is not the sort of person to commit sexual offences. We believe a defendant should be free to adduce this sort of evidence if he so wishes.

17.  On (g)—evidence to correct a false impression—clause 89 contains safeguards to ensure that no unfairness is created for the defendant. It is worth bearing in mind that this clause is only engaged where the defendant is responsible for an assertion and that assertion creates a false or misleading impression about himself. The purpose of the evidence therefore is to ensure that the fact-finders in the case have a correct impression of the standing of the defendant. Consequently, it is open to the defendant to withdraw or dissociate himself for any assertion, thereby making it clear that he no longer relies on the earlier claim. In these circumstances, sub-section (3) makes it clear that he is no longer to be taken as making the assertion and evidence of his bad character will no longer be admissible on this basis. Where this is not the case, and the assertion therefore remains unchecked, evidence is only admissible to the extent that it is necessary to correct the impression—sub-section (6). The Department therefore considers that this provision provides a proportionate measure that ensures that fact-finders are not misled.

18.  Turning to (d) and (h), both of these bases, like (e), are subject to the power in subsection (3) for the court to exclude evidence because of the effect it would have on the fairness of the proceedings. This test reflects the existing position under the common law, as section 78 of the Police and Criminal Evidence Act 1984 does, under which the judge balances the probative value of the evidence to an issue in the case against the prejudicial effect of admitting it, and excludes the evidence where the prejudice exceeds the probative value. In the case of (d), the starting point is that these convictions will always have some relevance to the issues in the case and it therefore creates a presumption in favour of their admission. However, this is not absolute and is subject to the discretion to exclude on the basis that prejudicial effect outweighs probative value. So if it had no relevance it would almost inevitably be excluded. We are perfectly willing to make that clear. The clause is drafted in this way to avoid complicated debates where unnecessary.

19.  The Department does not accept that evidence can be admitted on any of these bases which would cause unfairness to the defendant in breach of his right to a fair trial, and note that you consider that the application of such a test is likely to ensure that that is so. I offer my reassurance that that is indeed intended to be the effect of these provisions.

20.  The Committee queries whether a court would be bold enough to make use of such a power, where the statute expressly provides for this evidence to be admissible. However, by putting the exclusionary power on the face of the bill and by making it expressly clear that it applies to these categories of bad character evidence, I believe that we are sending a clear signal that whilst this evidence is to be approached on the basis that it is admissible, it is entirely legitimate for it to be excluded where its prejudicial effect outweighs its probative value. You also mention the need for a careful direction from the judge to the jury on how to approach this evidence. It is of course part of the function of the judge in his summing up to give the jury directions about the evidence they have heard in the case and I have no doubt that judges will give juries suitable directions in this area. There are, of course, standard directions issued by the Judicial Studies Board for use in a variety of circumstances and they will no doubt wish to consider whether the new provisions indicate a need for this in any respect. You also raise the fact that juries do not give reasons for their verdicts. Juries must often consider a range of complex and conflicting evidence and decide what weight is to be attached to it. They are assisted in their task by the rules of evidence which seek to ensure that they have only evidence which will assist them to reach a just verdict and the directions from the judge on the evidence that they have heard, which stand in place of a reasoned verdict. It is then for the jury to decide what weight is to be attached to the evidence, in the case of Seric v Denmark, the Strasbourg Court acknowledged that an unreasoned determination by a jury cannot be considered contrary to the Convention.

21.  The Committee has also raised two issues concerning equality of arms. The first concerns a co-defendant adducing evidence of a defendant's bad character, where you consider the grounds for doing so are narrower than the comparable scope for the prosecution. I should point out in this respect that only the prosecution may adduce evidence of a defendant's bad character under clause 84(1)(h) where the defendant has attacked the character of another. However, the substance of the issue is whether the prosecution are in a favourable position, in terms of their ability to adduce evidence, compared to a co-defendant. I do not agree that that is the case. Clause 84 is designed to enable all relevant evidence of a defendant's bad character to be admissible subject to exclusion in certain circumstances). Clearly, how that evidence is relevant will vary according to who is adducing it. However, clause 84(1 )(f) ensures that a co-defendant is able to adduce evidence of a defendant's bad character that is relevant to the issues between them and the defendant. The Department does not therefore consider that they are at a disadvantage in comparison to the prosecution. Indeed, the exclusionary power in subsection (3) does not apply to evidence to be adduced by a co-defendant about a defendant, with the consequence that, providing the evidence is relevant to an issue between the defendants (such as which of them was responsible for the offence), a co-defendant is likely to be able to adduce a wider range of evidence about a defendant's bad character than the prosecution.

22.  The second issue relating to equality of arms concerns the possibility of an imbalance between the grounds on which a defendant's bad character can be adduced on those that apply in respect of non-defendants. Again, the key is whether these provisions enable the defendant to adduce all relevant evidence in his defence and whether any restrictions or imbalance with the prosecution are justified. The relevance of evidence of bad character to the issues in the case will inevitably vary according to whether that evidence relates to a defendant or non-defendant and the provisions are designed to ensure that, in respect of both, relevant evidence can be heard by the court. There is some differentiation between defendants and non-defendants, primarily that a defendant may apply to have evidence of their bad character excluded, which will not be possible in respect of non-defendants and which justifies the slightly different test of relevance.

23.  However, the Department does not consider that the factors to be taken into account in the case of non-defendants narrow the basis on which that evidence can be admitted. These factors are designed to assist the court when considering whether evidence has substantial relevance to a matter in issue (and are expressly made to be non-exhaustive) and are not intended to set out the basis on which this evidence is to be admitted or refused. The requirement for leave also reflects the different position of non-defendants and defendants in the proceedings. A defendant will have notice of the prosecution's case in advance of the proceedings and will therefore be aware of any intention to rely on character evidence. They will therefore have an opportunity, before this evidence is adduced (and quite possibly pre-trial), to apply for the evidence to be excluded. There is no similar requirement in respect of defendants and the requirement for leave therefore ensures that the question of admissibility of a non-defendant's bad character is also considered before it is tendered.

24.  The Department is therefore satisfied that our proposals represent a coherent and sensible basis for admitting evidence of bad character and ensure fairness to both prosecution and defence.

Hearsay evidence

25.  The Law Commission considered whether the use of hearsay evidence in criminal proceedings would conform with the Convention in its report "Evidence in criminal proceedings: Hearsay and related topics" (Law Comm no 245). It examined whether the risk of there being a breach of the Convention where a person stands to be convicted on hearsay evidence alone was sufficiently serious to warrant requiring the court to stop the case where hearsay was the only evidence of an element of the offence. In the light of consultation responses, it concluded that this was an unduly cautious assessment of what the Convention required, and that a prerequisite that there should be other evidence would introduce complexity and endless legal argument about what constitutes supporting evidence. Such a requirement would, in effect, reduce hearsay statements to the level of an inferior form of evidence which at most could be corroborative of direct oral testimony. The Law Commission was satisfied that the safeguards which are in the Bill, and in particular the duty on the court to direct an acquittal if a case depends wholly or partly on unconvincing hearsay, would provide adequate protection for the accused. The Department agrees with its conclusion that in some cases there could be no better evidence than hearsay, for example, if the case is based upon reliable business documents. Each case will turn on its facts, but where such evidence is sufficiently convincing, it may safely and fairly found a conviction.

Disclosure of pre-sentence reports, probation reports, and reports from youth offending teams, to offenders aged under 17—clause 143

26.  Clauses 143 and 144 do not represent new policy. They essentially replicate sections 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000 which are, in turn, a consolidation of provisions in the Powers of Criminal Courts Act 1973 and the Crime (Sentences) Act 1997.

27.  But, having reviewed the policy in the light of the Committee's concerns, the Department accepts that it is out of line with other provisions about juveniles, notably the provision on drug testing at clause 145 and paragraph 1.11 of the PACE Code of Practice D (on identification parades) which sets the age at which juveniles are able to take their own decisions at 14. Therefore, the Department undertakes to introduce an amendment changing the age in clauses 143(3) and 144(3) from 17 to 14.

28.  The Committee raises three legal issues about the disclosure of pre-sentence reports and other reports of offenders under the age of 17 to their parent or guardian, rather than directly to the offender. These are issues about articles 6 and 8 of the European Convention on Human Rights, and article 12 of the UN Convention on the Rights of the Child.

Article 8 ECHR

29.  The Department accepts that issues are engaged under article 8 by the disclosure of a pre-sentence report to a parent or guardian. However, any right to respect for his private life which the offender may have in relation to the disclosure of the report need to be weighed against the parent or guardian's right under article 8 to exercise his parental rights in respect of the child.

30.  Strasbourg case law makes it clear that a parent may exercise certain rights over his child, even where the child does not consent. In Nielsen v Denmark (1989) 11 EHRR 175, the state placed a child in a closed psychiatric ward at the request of his mother. The child complained, through his father. However, the Court found that the mother was entitled to exercise her parental rights. At paragraph 61, it said—

    "The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise other to impose, various restrictions on the child's liberty ... Family life in this sense, and especially the right of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities is recognised and protected by the Convention, in particular by article 8.".

In McMichael v United Kingdom (1995), the Court held that parents had a right under article 8 to see social work reports on their children who were the subject of care proceedings.

31.  The Department takes the view that a parent's access to the reports is within the ambit of parental rights under article 8. These rights need to be weighed against the child's right to private life under article 8. The Department takes the view that clauses 143 and 144 strike the right balance, particularly in the light of the proposed reduction of the age to 14.

32.The Committee raises the issue that a child might no longer be in the care of a parent or guardian. This does not mean that the parent or guardian ceases to have any parental rights. A parent who does not live with a child continues to have parental responsibility for the child under the Children Act 1989 Even where a care order is made in respect of a child under section 33 of the Children Act 1989, parental responsibility is not extinguished; the local authority may only limit the scope of parental responsibility under 33(3)(b) where it is necessary to safeguard or promote the child's welfare.

Article 6 ECHR

33.  The Department does not take the view that article 6 ECHR entitles a child to have full access to all relevant documentation about his case. In the Kamasinski case (1991) 13 EHRR 36 the Court held that it was sufficient for a defendant's counsel to have access to a court file to comply with article 6. It was not necessary for the defendant to be able to see the documents personally. This view was taken by the Court again in Kremzow v Austria (1994)17 EHRR 322.

34.  In Foucher v France (1997) and Meftah v France (2002), the Court held that where the defendant chose to represent himself he was entitled to have access to court documents. It was not sufficient to say that he could have had access to them via his Counsel, had he chosen to instruct Counsel.

35.  However, the Department's view is that the giving of the report to the parent is sufficient to satisfy article 6. The rationale of Kamasinski and Kremzow is that a person responsible for the conduct of the case must have access to the documents. The argument above on article 8 shows that the parent is responsible for taking some decisions about the case, by virtue of the exercise of his parental rights. Under section 34A Children and Young Persons Act 1933, the court is obliged to require a parent or guardian to attend court, where a person under the age of 16 is charged with an offence. Therefore, the effect of clauses 143 and 144 is that someone responsible for the conduct of the case will always have access to the reports.

36.  In practice, a child will, in most cases, be provided with the reports in question. Rule 10(3) of the Magistrates' Courts (Children and Young Persons) Rules 1992 (S.I. 1992/20171 as amended) provides that the reports must be disclosed to the child unless the court directs that it would be impracticable, given his age and understanding or undesirable as he might suffer serious harm.

UN Convention on the Rights of the Child

37.  Article 12 of the UN Convention on the Rights of the Child safeguards the right of the child to express his views freely on all matters affecting him and for the views of the child to be given due weight. Article 12.2 states that his may be done through a representative.

38.  The Department considers that the right of the offender to instruct a legal representative and the fact that the legal representative must always have access to the reports under clauses 143 and 144 is sufficient to comply with article 12 of the UN Convention.

Exchange of information about certain sexual or violent offenders—clause 262

39.  The Committee has asked whether in order to ensure that there is no violation of the rights of any person (not only the offender) to respect for private life ECHR Article 8 and the Data Protection Act 1998, whether it could be made clear in clause 262 of the Bill that the clause would not require the bodies to co-operate where doing so would be incompatible with their duties towards defendants and other people under the Human Rights Act 1998 and the Data Protection Act 1998.

40.  I should first explain that clause 262 does not confer on the "responsible authority" responsibility for assessing the risk or "dangerousness" of offenders for the purposes of clauses 205-208. The arrangements for the assessment of risk posed by sexual and violent offenders, described in clauses 262 to 264, re-enact with some amendments section 67 of the Criminal Justice and Courts Services Act 2000. These are separate from the sentencing scheme for dangerous offenders in the earlier clauses. The duties described in clause 262 are for the responsible authority in each area to put in place arrangements for monitoring dangerous offenders in that area. In doing so, they must co-operate with a number of named bodies, who in turn must co-operate with them, particularly in the exchange of information. These "Multi-Agency Public Protection Arrangements" have now been in place since April 2001. An Annual Report 2001-02 was published on 13 September 2002 and is available on the Home Office website.

41.  The Committee's concern revolves around the extent to which the co-operation of the named bodies is compatible with their functions under other enactments, specifically the Human Rights Act 1998 and the Data Protection Act 1998. The Department appreciates the Committee's concern, but is of the view that, since the duties imposed by these Acts will always apply in any event there should be no need to refer to them explicitly and indeed that to do so could cast doubt on their application in other contexts and cause problems of statutory interpretation.

42.  Finally, the Committee has asked whether the Department has received any representations in connection with this Bill in relation to human rights issues. I am not aware of any such representations yet in respect of the Bill. The responses to the Criminal Justice White Paper, Justice for All, were published on 4 December and laid in the Libraries of both Houses. The Criminal Justice Bill manager will contact the Clerk of the Committee about any points raised in those responses which are specifically about human rights, in advance of the Committee's meeting on 7 January, but I hope that in the meantime this response will be helpful for the meeting on 16 December.

16 December 2002



 
previous page contents next page

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

© Parliamentary copyright 2002
Prepared 20 December 2002