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Baroness Kennedy of The Shaws: It is very helpful that my noble friend the Minister has outlined the way in which the Government are approaching this issue because many people outside the Chamber do not know. They do not understand what this is all about.

The question asked by the noble Lord, Lord Hylton, touched on this in some way. I was asked earlier, outside the Chamber, by a noble Lord from these Benches to explain how, in Clause 93(1)(a), all parties to the proceedings could agree to the evidence being admissible. He said, "Who could complain about that?" The answer is that no one currently complains about that. Frequently in trial, the parties—the Crown and the defence—will put their heads together. The defence will ask for a formal admission in writing that can be given to the jury on all sorts of matters. One such matter might be to tell the jury that the accused person, who is charged with robbery, has never been in trouble in his life save once, when he was only 17 and was convicted of shoplifting. That is done on the basis that giving the jury that information will help them to see that he is not a man who commits burglary regularly and that they may speculate if it is not provided. But it is done by way of agreement.

The general public do not seem to understand that in many circumstances the defendant's bad character is already placed before the jury. It is being presented by the Government as though this never happens. It happens on a regular basis, but on good reasoning.

It has been admitted tonight, and I hope it will be given some coverage, that we are seeing something that has never happened before. Instead of the presumption to exclude, we are seeing the presumption to include—to put convictions in. That is a disgrace. It is a disgrace that the Government should be lowering themselves to that level. It is a source of sadness to many of us that that is happening. It is a volte face; it flies in the face of principle that has been developed over many years to protect those who stand trial. It should be a source of shame to those on these Benches and to the Front Bench that they should be arguing this, and arguing that it has been put forward to make simple that which is complex. What dissembling. It has nothing to do with making simple what is complex; it is to do with putting people's previous convictions in front of juries in order to increase convictions. Shame on you.

Let it be clear to all those who will look at the record of this debate and vote at a later stage what this is about. That is why most of us are saying that this amendment should be made to the Bill. Judges, lawyers and every justice organisation in the country are outraged and shocked that the Government should think of doing this. Shame!

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9.45 p.m.

Lord Thomas of Gresford: There is not much that one can say after that, save this: that the measure is contrary to the Law Commission's proposals; it is a break with hundreds of years of tradition; and it is being proposed entirely for the reason given by the noble Baroness, Lady Kennedy, to put convictions in front of juries. We have had no explanation why the onus is now on the defendant, who only in certain circumstances may challenge the admission of convictions, and yet in other instances, as listed, is not able to do that. Absolutely no justification has been given for that at all.

I was brought up to believe that evidence that is relevant is admissible and that which is irrelevant is not admissible. It is terribly simple. I have never had any problems in advising clients about putting their character in. One knows that if one attacks a prosecution witness, the character is going to go in. One knows all the circumstances when the character is going to go in, and there are no problems about it.

If there are 15 pages in Archbold and 40 pages in that much battered volume, Cross and Tapper On Evidence, dealing with the subject, that is simply to illustrate what is an attack on another person's character; what is a false impression given by a defendant; what is an important matter in issue; and what is important explanatory evidence. All the issues that arise in the simple common law structure that we have at the moment—those issues for decision by the judge—will still be there. I reject the concept that people will read this statutory framework in a local pub and be satisfied that they understand the law a lot better. That is a ludicrous way of defending a completely unacceptable proposition by the Government.

Lord Kingsland: I shall not ask the Committee to divide on the amendment tonight, but I hope that the Minister has listened carefully to the remarks of all the Members of Committee who spoke, with which I totally agree. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 141 not moved.]

The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before calling Amendment No. 142, I must inform Members of the Committee that, if Amendment No. 142 is carried, I cannot call Amendment No. 143 for reasons of pre-emption.

Lord Kingsland moved Amendment No. 142:

    Page 62, line 16, leave out paragraph (d).

The noble Lord said: I believe that I am right in saying that Amendment No. 142 refers to Clause 92(1)(d). The issue concerns the way in which the Government intend to define the expression "the same category". That is dealt with in Clause 95(1), which says that,

    "two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State".

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It is unsatisfactory that the matter should be dealt with by order; the categories should appear in the Bill.

Moreover, Clause 95(2) states that offences of the same category can merely,

    "consist of offences of the same type".

According to Explanatory Note 336, it will be sufficient for evidence to be admissible under the same type test if, for example, the old and the new offence are offences of violence. Therefore, to compound the admissibility of evidence of bad character, which does not go to any issue in the trial, Clause 95(2) allows for the admission of evidence of past offending, which in its detail may be remote from the offences in issue. I beg to move.

Lord Carlisle of Bucklow: I fully appreciate that, when dealing with the Committee stage of such a Bill, one often becomes confused as to the effect of particular amendments. However, I have always regarded this amendment as almost the most important of all in highlighting objections to the Bill. I support everything that the noble Baroness, Lady Kennedy of The Shaws, said. It seems to me that Clause 93(1)(d) will make it far easier than ever before to put in the evidence of a defendant's previous convictions. Like her, I ask myself why the Government are doing it. The only answer I can think of is that they want to increase the conviction level but not necessarily the justice of those convictions. If,

    "evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged",

is to be part of the future burden of proof, there is a real risk that many people will be convicted on the basis of their past rather than the offence they are alleged to have committed.

Is it seriously said that the trial of a 50-year-old man charged with burglary—perhaps he put his hand through a window on a summer's afternoon to take something that was readily available—could in cross-examination include evidence that, at age 14, with others, he committed an offence of burglary? Such a proposal reeks of the danger and possibility that people will be convicted on their past rather than on the evidence. Individuals and juries could well put undue importance on a person's previous convictions.

Such convictions could be put before the jury without the leave of the judge. It is true that subsection (3) says the court may not admit that evidence if there is an application by the defendant to exclude. However, those very words, as against the necessity of persuading the judge to allow the evidence to be introduced, imply that we are changing the burden of proof.

I listened with interest at an earlier stage to the speech by the Minister, for whom I have great respect and regard. She said that the Government are doing nothing here but putting into statutory form the rather complicated position concerning similar fact evidence. With respect, I think that they are doing more than that. They are not only putting it into statutory form; they are substantially reversing it by changing the burden of proof.

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As has been made clear in almost all our debates this evening, beginning with that on the wording of Clause 90, the Government ought to look back and see whether they can relate the wording concerning admissible evidence of bad character to that which currently applies in similar fact evidence. That requires two things. First, to be admissible, the evidence should be both relevant and probative. I do not find much reference to the words "relevant" or "probative" anywhere in Clause 93. That is why I said that, of this Bill as a whole with all its good parts and its bad parts, I believed the most disturbing was that which dealt with the wider ability to introduce defendants' convictions into an ordinary trial. I repeat that the danger is that it is motivated by a desire to see the number of convictions rise and to claim that as a success rather than by the justice of those individual convictions.

I am sorry that the noble and learned Lord, Lord Williams, is not present as I would have said this with greater ease if he were. I should love to know what would have been the reaction of the party opposite if a Conservative government had proposed matters of the kind we are discussing. We know where the noble Baroness, Lady Kennedy of The Shaws, stands on the matter. I suspect, although he is not here, that I might even know where the noble Lord, Lord Brennan, stands. Had a Conservative government proposed such matters, noble Lords opposite would have been out in the street howling about the extreme right-wing nature of a government that changed laws which had applied in this country for many years merely to attain a higher conviction rate.

I should particularly like to know where the noble and learned Lord, Lord Williams, stands. I remember when he was chairman of the Bar Council listening with some degree of infuriation to him speak morning after morning on the eight o'clock programme castigating the government of the day, which was a Conservative government. He said that the Bar Council was totally opposed to this or that measure which Michael Howard, or even milder people like the noble Lord, Lord Waddington, wanted to introduce. I did not necessarily always agree with the noble and learned Lord, Lord Williams, when he said that he spoke for the Bar Council as a whole. However, I cannot help feeling that if he were on the Back Benches of the Opposition at the moment, together with the noble and learned Lord the Attorney-General, for whom I have great regard, and the noble Baroness, Lady Scotland, for whom I have even more regard, they would quietly lead the objections to the changes that we are being asked to accept.

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