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Lord Clinton-Davis: So why does my noble friend not include the words, "subject to Clauses 92 and 93"?

Baroness Scotland of Asthal: We shall deal with the precise nature of Clauses 92 and 93, but their whole purpose is to constrain Clause 90. The way in which it is drafted makes that clear. Clause 90 gives a definition of "bad character". Clause 91 abolishes the common law rules which currently restrain the admissibility of bad character. Clause 92 gives the basis upon which bad character evidence will be admitted in the case of a non-defendant. Clause 93 gives the basis on which bad character for defendants will be admissible. If it falls outside Clauses 92 and 93, it will not be admissible. We believe that that makes it clear.

Lord Clinton-Davis: I am sorry; no doubt, I am being obtuse. My noble friend has not replied to my criticism. Clauses 92 and 93 are all important in defining the non-defendant's bad character and the defendant's bad character. Would it not be an improvement—that is why I intervened before—if the noble Baroness were to refer in Clause 90 to those particular provisions?

6.30 p.m.

Baroness Scotland of Asthal: I am more than happy to consider that suggestion, but perhaps I may invite my noble friend to turn to Clause 92(1). A definition of "bad character" is given in Clause 90, and if we look further to Clause 92(1) it states that:


to which we have already referred as defined in Clause 90—


    "of a person other than the defendant is admissible if and only if".

The circumstances are then set out, in accordance with the normal precision of drafting.

Turning to Clause 93(1) on page 62, something very similar is set out:


    "In criminal proceedings evidence of the defendant's bad character is admissible if, but only if".

The basis on which evidence of that bad character may be admissible is thus made clear. So I hope that my noble friend will agree that the way the legislation is drafted is how he would wish it.

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I see that the noble and learned Lord, Lord Mayhew, is anxious to intervene. I shall give way.

Lord Mayhew of Twysden: I am grateful to the noble Baroness. All that she has said is helpful, but as yet not quite helpful enough. She has explained that Clauses 92 and 93 set out the rules respectively for the admissibility of a non-defendant's bad character and a defendant's bad character. However, she has not yet addressed our criticism of what the Act defines as "bad character". Our criticism is that, while I hesitate to use the word "absurdly", the Bill is grotesquely tentative and vague.

The point has been made. It is not enough to say that it is important to have a scheme; of course it is. It is not enough to point out the rules set out under Clauses 92 and 93 unless the complaint of what is defined as "bad character" is addressed. That is what we hope to hear.

Lord Carlile of Berriew: Pursuant to the point made by the noble and learned Lord, Lord Mayhew of Twysden, can the noble Baroness explain why it is necessary at all to include a definition of "bad character" in the Bill? Surely the question asked by the court is this: is character relevant? Does it matter if it is bad character or good character? Surely the clauses should contain provisions that set out when "character" is relevant.

I have a strong suspicion that the inclusion of "bad character" as defined is more a response to media pressure than to anything else. I also strongly suspect that if the Government continue to try to define "bad character" they will run into the problem governments always encounter when they try to define abstract qualities.

Baroness Scotland of Asthal: I believe that I have answered the question, but I am more than happy to clarify the position. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Carlile, have asked why this is drawn so widely. We are doing so because we have to catch as much evidence as we can which could then be made subject to the provisions of Clauses 92 and 93. If we were to draw this in a more narrow fashion, much of the evidence on which dispute before the court is likely to arise as regards whether the prejudicial value is more weighty than the probative quality may not be caught within the scheme.

The whole point is that we are getting rid of the old common law rules and, therefore, the break that they provide will not be in place. We need to cast the net in relation to bad character very wide indeed so that the rules that limit the admissibility of such bad character apply to the biggest possible catchment, as it were, of evidence. We need the wide definition. That is the purpose here.

I had assumed that the intention of the amendment and, for that matter, Amendment No. 139, which we shall discuss more fully, is to restrict the kind of bad

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character evidence that can be admitted. I have just outlined why we think that that would be highly undesirable. While evidence of previous convictions may well be the kind of evidence that is most likely to be adduced, it is important to recognise, as does the current law, that evidence going wider than previous convictions can have probative value and that, in appropriate circumstances, this evidence should be capable of being admitted.

I should therefore like to turn to the kind of evidence that is covered by the reference to evidence that "tends to show" that a person has committed an offence or acted in a particular way. This is the issue raised by, among other noble Lords, the right reverend Prelate the Bishop of Worcester. This part of the definition would be removed by Amendment No. 138. The mischief that it seeks to address is that, in particular in the case of criminal conduct, if a person has not been convicted of an offence, it might be difficult to say that evidence relating to that charge shows that he has committed an offence; yet the evidence might be highly relevant.

Examples of where it might be appropriate to admit such evidence include circumstances where evidence on a number of charges being tried concurrently is cross-admissible in respect of the other charges. It might also be appropriate to admit evidence relating to charges on which the defendant was acquitted, as I have already cited in the example of R v Z. It would be unfortunate if an argument were to be accepted that, because a person has not actually been convicted of the offence, it cannot be said that the evidence shows that he has indeed committed such an offence and it is therefore excluded.

That would represent a severe restriction on what is currently admissible. Evidence of the kind described can be admitted under the common law rules and, indeed, many of the landmark cases in the development of the "similar fact" rule involve evidence of this kind. I am sure that those noble Lords with experience of the criminal law will know very well the cases of Boardman in 1974, DPP v P in 1991 and R v H in 1995. Those are all examples of important cases in the development of the common law similar fact rule and all involve admission of evidence other than previous convictions. Those three cases were all concerned—

Lord Carlile of Berriew: With respect to the noble Baroness and deferring to the presence of the noble and learned Lord, Lord Mackay of Clashfern, how on earth can she cite DPP v P in support of Clause 90(1)(b)? DPP v P does not offer the remotest justification for this kind of provision. No doubt I shall be subject to harsh correction if I get this wrong, but DPP v P provides for evidence to be admitted if it is probative; that is, relevant and probative, not of the bad character of the accused, but of the offences with which he has been charged: the index offences. That is a million miles from the citation that the noble Baroness is trying to make.

Lord Lloyd of Berwick: I support entirely what has just been said by the noble Lord, Lord Carlile. The same applies to the case of R v Z, referred to by the

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noble Baroness. That case is referred to in the Explanatory Notes and I have taken the opportunity to look at it. It really has nothing to say in support of a wide definition. R v Z was a case where the argument concerned double jeopardy; that is, whether the previous acquittal meant that the person could not be tried again. The evidence was admissible on ordinary similar fact evidence grounds as established in DPP v P and in subsequent cases with which I know the noble Baroness is familiar.

Baroness Scotland of Asthal: I have sought to respond to the questions raised about the species of evidence which goes beyond the proof of conviction. A number of noble Lords have pointed out that we can understand the admissibility of conviction, but not other evidence which goes more widely and "tends to show".

My whole point here is that if one looks at DPP v P, Boardman and R v Z, they go beyond mere conviction and are included in additional information which the court deemed it proper to admit into evidence. They would fall into the category of material which tended to show—as similar fact evidence tends to show—but is not evidence of an actual offence. The noble Lord will know the case of Boardman particularly well for that reason. That was the whole point of adducing the similar fact evidence. It was not that the person had been convicted and found guilty of previous offences, but the similar fact evidence from those earlier issues was important to verify guilt.

I am not talking about the definition; I am dealing quite clearly with the argument that species of evidence that fall outside convictions should be excluded. So if you exclude the words "tends to show" and you abolish under Clause 91 the previous rules under the common law, you are left with issues such as similar fact which would otherwise be excluded.

I know perfectly well that is not what the noble and learned Lords, Lord Lloyd and Lord Mayhew, intend. Indeed, I know that even the noble Lord, Lord Carlile, who sits on the Liberal Democrat Benches, would not wish to see that. I am seeking to explain why the regime of "tends to show" is cast more widely than the simple stricture of having to prove a conviction and no more. That is why these cases are important. I see the noble and learned Lord, Lord Lloyd, nodding in understanding if not in agreement.


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