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Baroness Scotland of Asthal: It was a laxity of language or an imprecision on my part. The noble Lord will know that the defence is served with all evidence upon which the prosecution intends to rely, whether by way of used or unused material. If the prosecution serves that evidence, it is always open to the defence to say, "This evidence should be properly excluded because it falls outwith any of the rules of admissibility of evidence before the court". Therefore, if the defence has been served with evidence under Clause 93(1)(c), which it feels falls outside the terms of Clause 94(a) and (b), and that the prosecution is not entitled to adduce it under the other provisions of Clause 93, it could say to the judge, "The prosecution seek to suggest that this can properly be included under Clause 93(1)(c). We disagree because we believe

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that Clause 94(a) and (b) have not been so satisfied, and you should exercise your discretion and exclude it".

I apologise for saying "on application". It would not be an application, but it would be possible for the defence properly to make those submissions on behalf of the defendant and for the judge to so determine.

Lord Thomas of Gresford: That is absolutely right. If the defence knows that the prosecution intends to adduce evidence, they can have an argument as to whether it comes within Clause 93(1)(c)—whether it is "important explanatory material". That can happen now. But, if the judge decides that it does, that is the end of it. The judge cannot say, "Yes, it is important explanatory material, but it has huge prejudicial effect". That is the point.

At the moment there are two decisions to be made: first, is it explanatory material and, secondly, weighing in the balance the prejudicial effect against the probative value, is it fair to allow the prosecution to adduce it? The Government are just getting rid of that second test altogether. The judge may be sitting there, thinking, "I am presiding over an unfair trial. It is important explanatory material, but if I were allowed to carry out the test that I can at the moment, I would most certainly exclude it: it is leading to unfairness". The Minister may not have appreciated that, and certainly those who drafted the clause have not appreciated it.

Baroness Scotland of Asthal: I invite the noble Lord to look at the wording of Clause 94(a). It states:

    "without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case".

That is a high threshold. I repeat:

    "would find it impossible or difficult . . . and"—

not "or"—

    "its value for understanding the case as a whole is substantial".

So, a fairly high watermark must be satisfied before the judge would be satisfied that the evidence falls within that which could properly be described as "explanatory evidence". We have other provisions under Clause 93(1)(d) and particularly (e). There is an argument that one should simply put them both in (e):

    "it is relevant to an important matter in issue between the defendant and the prosecution".

We say that there is a difference between evidence that does not go to proof of guilt but goes to explanation and evidence that goes to guilt. That disaggregation is helpful in the interests of justice in order to get a proper balanced trial.

Therefore, I understand the nature of the comment made about probative value. In response, the Government say that the appropriate test on admissibility and evidential worth is to be found in Clause 94(a) and (b). That is the test that will apply to Clause 93(1)(c).

Lord Thomas of Gresford: For the record, in order to assist judges who may have to interpret this clause if it passes, will the Minister confirm that Clause 94

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demands a very high probative value before explanatory material can be adduced—rather more than at the moment, where the balance is being struck?

Baroness Scotland of Asthal: I hope that I have tried to express myself with a modicum of precision. I have already said that it is very difficult to describe the explanatory evidence as probative, because strictly speaking it does not prove an issue relating to guilt. It sets other evidence in context. The appropriate threshold for that contextual evidence is to be found in Clause 94.

Lord Kingsland: I am grateful to the noble Baroness. The evidence may not be probative in the sense that she describes, but it can certainly be prejudicial. We could take the example of two people who are alleged to have committed a crime. One pleads guilty and is not in the dock; and the other pleads not guilty but is in the dock. It is extremely difficult to explain the background to the crime without talking about the second participant. That is an example of a situation in which the prosecution may press very hard to exercise Clause 93(1)(c).

The judge may conclude that the prejudicial effect of allowing that evidence in—the fact that the second party had already pleaded guilty—far outweighed its probative value. Yet, under this subsection, there is nothing whatsoever that the judge could do to stop the inclusion of the evidence; because in this particular set of circumstances it might be very difficult for a jury to understand other evidence unless they knew that a second party had participated in the alleged crime.

Lord Dubs: I have been following the discussion very carefully and intervene to ask my noble friend a question. What difference would it make if Clause 93(3) were widened to include Clause 93(1)(c)—if the second test mentioned by the noble Lord, Lord Thomas, were also to apply? It seems to me that that would not weaken in any way what the Government seek to do.

Baroness Scotland of Asthal: In response to my noble friend, the whole point of creating a new statutory arrangement in this area is to bring together jurisprudence, which has developed over a very long time, and the way in which common law rules have interacted with the various statutory provisions over a period of time. This is our opportunity to bring all the provisions into one quite succinct place and express it with as great a clarity as we can to make sure that the ways in which these rules are applied are comprehensive across the piece. That is the Government's intent.

Of course, I hear the strong views expressed by others who would like to construct things differently. I have sought to explain why, in answer to the noble and learned Lord, Lord Ackner, the Government have fashioned things in this way. I hope that I have succeeded in doing so. We are not complacent about the issues that will be engaged by the nature of Clause 93. However, the test is only one of a number of ways in which the safety and fairness of trials are protected.

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The scheme includes other safeguards that I shall outline in due course to ensure that defendants' interests are given appropriate consideration. Therefore, we have not applied the exclusionary test to circumstances when defendants' interests are properly safeguarded in some other way and there would be no proper role for that test to play. That is the rationale behind what we have done.

I can accept that noble Lords may not agree, but I hope that I have explained with a modicum of clarity why the Government are doing what they are currently minded to do.

1.45 p.m.

Lord Lloyd of Berwick: The Minister explained the Government's position very clearly, but would she bear it in mind that this is one of the very points to which the Lord Chief Justice drew attention in his paper? A problem will arise because it is said that the provision will not allow the general discretion of the judge to exclude prejudicial evidence in these circumstances. That is one of the things that is worrying the judiciary. I do hope that the Minister will bear that in mind.

Baroness Scotland of Asthal: We have very much taken into account what the noble and learned Lord says; and, indeed, what the noble and learned Lord the Lord Chief Justice said in relation to these concerns. That is why we have tried to explain it as fully as possible. We have also tried to reassure noble Lords. The noble and learned Lord knows well that we have been able to rely on the sagacity of our judges and on the faithful discharge of their duties to ensure that that which is in accordance with fairness and justice is actually done in relation to the admission of evidence.

Noble Lords also know that this category of inclusion of evidence has been well established for some time. The judges of England and Wales are very experienced in determining whether evidence falls within the specific category of being necessary for the explanation. We therefore expect that judges exercising their discretion pursuant to Clause 93(1)(c) in conjunction with Clause 94 will be able to discharge their duty and ensure that there is a fair trial, without doing violence to the necessity to have before the jury the sort of evidence needed to make an informed judgment.

It is sometimes difficult because one has to treat juries with respect. They need the tools to make informed judgments. They will judge the facts. We know that this evidence has been of assistance in the past because that is why new approaches have developed in jurisprudence—inclusionary information that has hitherto been excluded can now be admitted in evidence so that juries can make sense of the whole package presented to them.

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