Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Bishop of Worcester: I have listened very carefully to the noble Baroness's explanations in the past few minutes, which were given with great precision and clarity. However, as one of the noble

18 Sept 2003 : Column 1094

Lords present who is not a lawyer, there is one thing that I cannot get out of my mind. We have been repeatedly told, not only in this House, but also in the public launch of the Bill, that one of its purposes is to shift the balance of the criminal justice system—in favour of the victim, by implication—against the alleged criminal. That means that every time the Minister says that the purpose of a particular clause is to bring the established principles of jurisprudence together with statute law and common law, I am left with the question whether part of its purpose is not also to play its part in shifting the balance in the way that it was proposed the Bill would do.

It would help me greatly if, on each clause, the Minister could say, for example, "This is introduced purely for organising legal inheritance purposes and plays no part in the shifting of the balance". Otherwise, in common with other Members of the Committee, I shall continue to suspect, however clear the explanation, that any clause forms part of the equipment for shifting the balance, which is the fundamental aspect of the Bill. I hope that I make myself clear.

Baroness Scotland of Asthal: I understand the right reverend Prelate's remarks about what the media have said and how they have presented it outside the House. Regrettably, I have no control over how anyone other than me expresses the provisions. The Government seek parity, fairness and justice, and the delivery of justice in a clear, understandable, recognised way to those who participate in, and rely on, the justice system.

It is right that there is a perception that the balance has been put far too much in favour of the defendant, and not properly in favour of the victim. Our jurisprudence has developed in a sound way. The Bill seeks to set out the position clearly so that we all have the same starting point, giving scope for further development. But the fundamental principles of what Clause 93 does are in our jurisprudence already.

We hope that we will now have the clarity and precision to enable us to say, "In one place, you will be able to see what we have said for the defendant and for the prosecution. That legislation provides the balance and the clear exposition of the position". We know that the jurisprudence will continue to develop in accordance with our common law. The best way of saying with clarity, not only to those responsible for administering the justice system, but to those affected by it, is that we have the balance right and it is here in one place. The legislation will provide in one place the answer to the arguments and debates about whether victims are getting a proper, fair deal, whether defendants are properly protected, whether the system works and whether it is balanced. I do not know whether that will silence those who continue to rage about the issues. All I can say is that the Government are doing their best.

Lord Cooke of Thorndon: Perhaps it will assist the noble Baroness if I suggest that, when the measure reaches Third Reading, instead of having the abstract discussion that has occurred today, in which she has

18 Sept 2003 : Column 1095

acquitted herself brilliantly, she could introduce an element of what one might call brass tacks on the matter of balance. Either the Bill makes a significant change to the balance between the prosecution and the defence in a criminal trial or it does not.

There may or may not be justification in some cases for moving the balance towards the prosecution. To cope with the question, one needs specific examples. To test the merit of Clause 93 and so forth, we need a specific example of a case. We need, for example, a case concerned with allegedly important explanatory evidence that would probably be ruled out by the judge as inadmissible at common law, but that would go in under the Bill, and where it is desirable that it should do. With such a concrete example, one would be in a far better position to form a view of whether the provisions had any merit.

Baroness Scotland of Asthal: I understand what the noble and learned Lord says in that regard. I shall see whether I can return with some case studies as he describes. One of our difficulties, not in the debate in this Chamber, but elsewhere, has been that every time one side of the debate says, "We want this to be included in Clause 93", the other side says, "But it is already possible" and the Government say, "Yes, it is". That debate is happening now. We have put everything in one place to enable concision.

I am happy that we should continue that debate. I will see what can be done, but I think that the debate will continue on Report, not in Committee. I hope, therefore, that Members of the Committee will take into account the expansive nature of today's debate so that we can hone any further debate on Report to only that which is absolutely necessary.

Lord Kingsland: I admire the perspicacity of the intervention by the noble and learned Lord, Lord Cooke. It is notable that, although the explanatory memorandum devotes quite a lot of illustrative space to other clauses, its contribution to the explanation of what Clause 94 means is especially spare. It consists, in paragraph 335, of two lines:

    "Clause 94 defines what is meant by important explanatory evidence. The definition mirrors that used in the context of non-defendants".

It would be extremely helpful if, on Report, when we will undoubtedly return to Clause 94, the Government provided greater detail about the factual situations in which the provision applies.

Lord Ackner: The extensive interrogation of the noble Baroness over the past 40 minutes seems to give great weight to the observation by the Lord Chief Justice on evidence of bad character, at paragraph 13 in his supplementary note. He expressed his own view and that of the Court of Appeal Criminal Division as follows:

    "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

18 Sept 2003 : Column 1096

    convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".

In regard to the noble Baroness's specific answers to the problems which confronted me, I do not understand yet why the other paragraphs, to which I have drawn attention, should not come within subsection (3). I never drew attention to paragraph (a) for obvious reasons—the parties have agreed. In paragraph (b), the evidence can be adduced by virtue of cross-examination, which could be cross-examination that would not now be permitted. No restriction is placed on the cross-examination. Apparently, we will have the possibility of situations in which, hitherto, the judge would say, "No, Mr Brown, I don't think I should follow that course", seeking to protect the defendant from excessive prejudice. It may be a case in which the judge himself would warn the defendant, and not proceed further with a line because it lets in cross-examination or the defendant's record.

Clause 93(1)(c) states,

    "it is important explanatory evidence".

So it could be, but the test of probative value and prejudice is perfectly appropriate to that. The same applies to paragraphs (f) and (g). We should have further material by the time we come to Report stage. Therefore, I do not seek to divide the Committee.

Clause 93 agreed to.

Clause 94 agreed to.

Clause 95 [Offences "of the same description" or "of the same category"]:

2 p.m.

Lord Kingsland moved Amendment No. 146:

    Page 63, line 4, leave out paragraph (b).

The noble Lord said: We have already debated the—

Lord Ackner: Perhaps I may inquire which piece of information is right: that is, that we will not go on this Bill beyond 4 p.m. or that we could go on until 6 p.m.? I am in the unhappy position of having a wife who cannot be left alone. I have certainly covered the position until 4.30 p.m. Should I cover the position beyond that?

Lord Davies of Oldham: Through the usual channels, it is the intention, and it has been agreed, that we should go until 6 p.m. on this Bill.

Lord Kingsland: The substance of Amendment No. 146, as it relates to Clause 93(1)(d), has already been discussed as a consequence of earlier amendments. The noble Baroness will be aware that the observations made from this side of the House were that Clause 95(1)(b) would allow offences that had nothing whatever to do with the offence with which a person is charged to be brought in evidence against them.

The noble Baroness has, most courteously, already given Members of the Committee the benefit of her views on that aspect. Therefore, I do not propose to

18 Sept 2003 : Column 1097

provoke her again in that respect today. The only point that remains is to ask about the way in which subsection (1) is intended to be implemented by the Secretary of State.

I am extremely concerned that the category of offences stipulated in Clause 95(1)(b) is a matter not for the Bill, but for an order made by the Secretary of State. My concern deepens when I look to the way in which "category" is defined in Clause 95(2), which states:

    "A category prescribed by an order under this section must consist of offences of the same type".

On turning to the Explanatory Notes to seek a definition of "the same type", I find that it is exceedingly wide.

In my submission, the discretion given to the Secretary of State in these circumstances is a discretion that the Committee should not permit. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page