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Baroness Scotland of Asthal: We shall of course consider the consequences of the previous vote. The point of casting the net wide on subsection (1)(b) was so that as much as possible could be caught and bound by Clauses 92 and 93. We did not wish it to be argued, particularly if were moved Clause 91, that proof of bad character was outside the statutory scheme, therefore outside Clauses 92 and 93, so that the restrictions placed on admissibility did not catch that evidence. That would mean that the balance that the court would have to strike to ascertain its probative value would somehow be avoided.

Of course, as is always the case, we shall go away and consider our position. However, the whole purpose of casting the net so wide was so that we would catch as much as possible, so that the process would be subject to the constraint and restraint that we seek to impose in Clauses 92 and 93.

Lord Kingsland: I thank the Minister for her reply. Perhaps I could explain why I continue to be worried by the inaccuracy of Clause 90(1)(b).

The noble Baroness has referred to the restraints in Clauses 92 and 93. Clause 92 refers to the non-defendant's bad character while Clause 93, which is the more important one, refers to the defendant's bad character. The difficulty is that Clause 93 contains very few constraints on the ability of the prosecution to put bad character in evidence. In Clause 93(1)(a) to (h), five of those eight sub-categories go in automatically. Only three are subject to the discretion of the judge, and then only if the defence applies and invites the judge to exercise that discretion. That is a world away from the existing situation.

The reason, therefore, why the definition of bad character is so important in Clause 90 is because the protection for the defendant in Clause 93 has become so weak—as a result of the way in which the Government, themselves, have drafted the Bill. Therefore, I must ask the Minister for a clear and specific undertaking on Clause 90(1)(b) if I am to avoid asking again for the opinion of the Committee. Could the Minister say, very telegraphically, whether she is prepared to give me that undertaking? If she is not prepared to give me that undertaking, I shall ask for the opinion of the Committee.

Lord Renton: It is a great advantage to have my noble friend with us again, not only because he is always bright and lucid but because on this matter he has emphatically pointed out how useless the expression is that he wants left out. Can Members of the Committee imagine, when deciding on criminal responsibility, using the expression, "disposed to behave"? What can it mean? It can only be very vague. And how are we to interpret,

It could be said,

    "even by a reasonable person".

Those sorts of expression must not be allowed to remain in the Bill.

Baroness Scotland of Asthal: The only undertaking that I can give is that we shall, of course, look at the

15 Sept 2003 : Column 723

matter. I do not know whether the noble Lord, Lord Kingsland, wishes to hear anything more from me. I note what he says in relation to Clause 93, but invite his attention to subsections (3) and (4). Subsection (3) states:

    "The court must not admit evidence under subsection (1)(d),(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

Subsection (4) states:

    "On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged".

There is the protection to which I referred. I can say only to noble Lord who speaks for the Opposition from the Dispatch Box that we shall, of course, consider these issues between now and Report stage. It would be open to the noble Lord to divide the House on Report if he felt that we could not assist him or take the matter further. I cannot give him any further undertaking than that.

Lord Thomas of Gresford: I merely make the point that I made before—that this appears to be an attempt to bring a similar fact evidence rule into the provisions. It simply does not work, and it has got to go. If the noble Lord chooses to vote, we shall be with him.

Lord Kingsland: I am most grateful to the Minister for her response but, in the circumstances, I feel that I must invite the Committee to divide.

7.9 p.m.

On Question, Whether the said amendment (No. 139) shall be agreed to?

Their Lordships divided: Contents, 102; Not-Contents, 81.

Division No. 5


Ackner, L.
Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Barker, B.
Bell, L.
Blatch, B.
Bridgeman, V. [Teller]
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chester, Bp.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Denham, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Fearn, L.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Harris of Richmond, B.
Hereford, Bp.
Hodgson of Astley Abbotts, L.
Hooper, B.
Hooson, L.
Howe, E.
Hunt of Wirral, L.
Hylton, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kilclooney, L.
Kingsland, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Linklater of Butterstone, B.
Liverpool, E.
Lloyd of Berwick, L.
Luke, L.
Lyell, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Razzall, L.
Renton, L.
Roberts of Conwy, L.
Roper, L.
Rotherwick, L.
St John of Fawsley, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.
Winchester, Bp.
Worcester, Bp.


Acton, L.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morgan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Radice, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Temple-Morris, L.
Tomlinson, L.
Turnberg, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Williams of Mostyn, L. (Lord President of the Council)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

15 Sept 2003 : Column 725

7.19 p.m.

The Deputy Chairman of Committees (Lord Geddes): The Question is whether Clause 90, as amended, shall stand part of the Bill.

Lord Ackner: This is designed to be the coup de grace before we have an intake of a little refreshment.

We have perhaps overlooked, because it seems such a long time ago, the Second Reading. The noble and learned Lord the Lord Chief Justice took the unusual step, so that it would not be said that he had detained the House too long, of placing in the Library of the House a memorandum which represented not only his views but the views of all the High Court judges and the views of the Court of Appeal Criminal Division. Therefore, the material which is to be found there is, I think, the shortest way of my dealing with this. It is to be found on page 4 of the memorandum, headed "Evidence of Bad Character, Part II, Chapter 1". Paragraph 12 states:

    "This part abolishes the common law rules and introduces new rules which require greater disclosure of evidence of bad character in the course of proceedings than would have been required hitherto"—

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