Lord Bassam of Brighton: For the convenience of the Committee, perhaps the noble and learned Lord could indicate to which clause he is speaking. As I understand it, we are still on Clause 90.
Lord Ackner: I am speaking to Clause 91.
The Deputy Chairman of Committees: The Question that I put to the Committee was whether Clause 90, as amended, should stand part of the Bill.
Clause 90, as amended, agreed to.
Clause 91 [Abolition of common law rules]:
On Question, Whether Clause 91 shall stand part of the Bill?
Lord Ackner: I do apologise. I shall take as read what I said, in the hope that Hansard will put it in. I had reached paragraph 13, which is where the meat begins. It states:
"The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant.
The definition has two limbs. First, evidence that the person 'has committed an offence'. There is no difficulty here. However, it is then provided that evidence 'which shows or intends to show that . . . 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' is also evidence of bad character. This latter test of bad character is far more uncertain than it should be and is likely to give rise to a prolonged argument during a trial as to whether particular conduct falls within it. Furthermore it is likely to lead to appeals (see clause 90).
An example of the sort of complications that are likely to arise as a consequence of chapter 1 is provided by clause 96. That clause is designed to introduce into a trial an issue as to whether a defendant has a propensity to commit an offence or a propensity
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to be untruthful and then allow evidence of bad character to be given. This evidence of propensity is particularly dangerous. A trial should relate to whether an accused has committed an offence or is untruthful and not questions as to whether the defendant has a propensity. Again the judiciary consider this provision is likely to complicate proceedings and prolong trials without any benefit. (It is appreciated that evidence as to a propensity to be untruthful is limited by clause 97.)
Another curiosity relates to the provisions as to the defendant's bad character. The judge is allowed to exclude evidence of bad character if it would have 'such an adverse effect on the fairness of the proceedings that the court ought not to admit it', but this discretion does not apply to all the situations where evidence of bad character can be admitted. In addition, the clause addresses when the judge is to exclude the evidence. It would be preferable if this clause and many similar clauses gave the judge a discretion to admit such controversial evidence and not to exclude it. (clause 93(3)).
The situations not included are set out in subclauses (c), (f) and (g). Sub-clause (c) refers to 'important explanatory evidence'. Sub-clause (f) relates to evidence that has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Sub-clause (g) is evidence to correct a false impression given by the defendant. What is not clear is whether the general discretion of a judge to exclude evidence because its prejudicial value exceeds its probative value is excluded. If it is intended to be excluded, then it certainly should not be".
Those were the views of the senior judiciary, a High Court judge and the Court of Appeal Criminal Division. It is a clear indication that the clause is not one that should be allowed to exist. Although this matter will end inevitably in a Division, Divisions are unnecessary because the whole clause should be swept aside.
Lord Renton: I warmly support what the noble and learned Lord has said. I hardly need to remind your Lordships that for generationsnot by statute but under the common lawit has been against the rules of our courts to admit evidence of bad character in proof of a fresh offence. Criminal cases in our system have over the years avoided injustice to a remarkable extent. But if we simply let in evidence of bad character and there is a bit of doubt about the case which the prosecution has put forward, is there not then a danger that the jury may well say, "Yes, well, the prosecution case was not very good but this man is no good; he has been convicted before. Let us convict him"? That would be terrible injustice. That is why I support the noble and learned Lord.
Lord Cooke of Thorndon: I, too, support the opposition to Clause 91 of my noble and learned friend Lord Ackner. On another controversial issuethat pertaining to jury trialI have unsuccessfully, and against fearful odds, supported the Bill in principle. But so far I have not been reconciled to the excessively complex provisions of this chapter. To me they are redolent of a drawing board in a government office rather than the flesh and blood reality of a criminal trial.
The existing common law of England and Wales as to the admissibility of similar fact evidence was liberalised in England by the Appellate Committee of your Lordships' House in the 1991 case already referred to this eveningDirector of Public Prosecutions v Pin a
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speech delivered by the Lord Chancellor as he then was, the noble and learned Lord, Lord Mackay of Clashfern, whom it is a delight to see present tonight.
Previously it had been understood that the test for admissibility was whether the evidence showed conduct by the defendant strikingly similar to the conduct now charged. The noble and learned Lord, Lord Mackay, held that the striking similarity test was too narrow. The question is always whether the evidence has sufficient probative force on the present charge to justify its admission, notwithstanding that it prejudices the accused by showing that he is not of good character. Mere propensity is not enough. There must be relevance and probative value such that to deny the jury the full picture would be an affront to common sense.
In the course of his speech, the noble and learned Lord recognised that the law of New Zealand had already undergone a similar development, citing certain New Zealand cases. Since P, English and New Zealand law have marched hand in hand on the subject. The sufficient probative value test prevails and is calculated to do justice. Being a question of degree, it is uncertain in the sense that it requires a judge to exercise judgment on the facts of particular cases. However, the law is necessarily full of grey areas where such judgments are essential. Judges are appointed to judge, not to apply automatically inexorable formulae. By comparison with tests suggested in the Bill, the evolved common law is at least more certain, simpler and fairer.
I shall briefly make that good by referring to two key provisions in the Bill. Clause 93(3) states that the court must not admit certain evidence 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".
Apparently, "some adverse effect" on fairness would not be enough. "Such" seems to require something blatantly unfair. Be that curiosity as it may, in posing a test concerning unfairness in a particular case, the provision would require a discretionary judgment, wider if anything than the probative value test.
Clause 96(1)(a), on whether certain evidence is admissible, includes within the qualifying matters,
"the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".
That provision does not specify who is to adjudicate when admissibility has to be decided on the "no more likely" question. Obviously at that stage, it could only be the judge. It also seems obvious that that will present for the courts questions of degree subtly different from the question posed by the case of Pquestions novel, difficult and contentious.
In the light of such intricaciesI have given but two examplesthe Bill will be improved if the chapter is simply omitted. It was dismaying to hear the noble Baroness, Lady Scotland, say that it was an extremely important part of the Bill.
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The Lord Bishop of Worcester: I should like to oppose the Question that Clause 91 stand part of the Bill. I do so because I have an uneasy feeling that it is somewhere near both the heart of the matter with which the Bill is an attempt to deal and the flaws that, frankly, I think are in it.
I dare to say from these Benches that I have the sense that the wisdom of the common law arises from a fundamental Christian conviction about the use of inductive logic in relation to human beings. That is to say that it is possible to make inductive statements of a scientific sort about all sorts of issues, but that human beings have to be considered in a rather different way. It is extremely worrying, but we all know that we have within ourselves a tendency to make inductive judgments about human beings"That's the sort of person who might well have done such-and-such"on grounds that have subsequently proved extremely prejudiced.
Therefore, in thinking about the clause, we ought to be very aware of the doctrinal history that lies underneath our common law and our practice. We must be very careful that we do not give validation to ways of thinking about human beings to which we are all prone but which, in our human wisdom, we have thought inappropriate to make deciding factors when it comes to people's liberty.