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Lord Williams of Elvel: Before the noble Baroness, Lady Seccombe, responds, would the noble Baroness, Lady Anelay, like to reflect on her assertion that there was a printing error? My experience, which goes back quite a long way in this House, is that the Public Bill Office does not make printing errors. If there was an error between the various noble Baronesses, that is their problem; it is not that of the Public Bill Office.

Baroness Anelay of St Johns: I hate to disagree with the noble Lord, but there have indeed been several problems in printing during the course of the Bill, as the Minister is also aware. The Public Bill Office has been under tremendous strain. It has been most

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apologetic when errors have occurred; as we always are when we cause errors. On this occasion, during the recess, when I tabled 180 amendments, I took the precaution of typing, faxing and keeping copies of them myself, so I am aware exactly what was tabled, which has been accepted. So I can assure the noble Lord that there was a printing error on this occasion, and there have been errors on this Bill on previous occasions. But they are so rare that I can perfectly well understand why he found that so surprising.

Baroness Scotland of Asthal: Prescience must have prevailed.

Baroness Seccombe: I thank those noble Lords who supported the amendment and the Minister for her detailed reply. There is much to read and digest in what she said. I wonder whether it is Clause 93 that needs redrafting. I shall take further advice and discuss the matter. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 101 agreed to.

Clause 101 [Assumption of truth in assessment of relevance or probative value]:

On Question, Whether Clause 102 shall stand part of the Bill?

Lord Ackner: I can be brief, because I have the advantage of the views of the judges. They refer to the unnecessary verbiage in the Bill and in particular to Clause 102. They state that Clause 102,


    "contains nothing more than a statement of the obvious".

If that is the case, why are we adding even further to this excessively long Bill?

Baroness Scotland of Asthal: Clause 102 deals with the approach that the court is to take towards assessing the truth of bad character evidence when considering its probative value. Of course, I take seriously what the noble and learned Lord says about the concern expressed by the judges. It would be a little unjust to describe it as verbiage, if for no other reason than that that term lacks elegance.

For those purposes, the court is required to assume that the evidence is true. That follows the recommendation of the Law Commission in its report, Evidence of Bad Character in Criminal Proceedings, Law Commission Document No. 273, and codifies the current common law.

The issue is this: probative value is a combination of the extent to which the evidence proves a matter in question and the extent to which it can be relied on. Assessing probative force is an important issue in admitting bad character evidence, as it can be excluded where its prejudicial effect outweighs its probative value. The question therefore arises: to what extent should the judge assess the credibility of a witness when considering the admissibility of their testimony of a defendant's bad character?

As the noble and learned Lord will, I am sure, know, the point was considered in the House of Lords in 1995 in the case of R v H, which involved allegations of

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collusion between two witnesses whose accounts were sought to be admitted in support of each other under the similar fact rule. The House took the view that the assessment of a witness's credibility should be left to the jury and the trial judge should accordingly make no inquiry into the quality of evidence when considering its admissibility. That maintains the important distinction between the roles of the judge and the jury: the jury being asked to decide matters of fact, such as the reliability of evidence; and the judge ruling on matters of law.

In its 2001 report, the Law Commission recommended that the law be codified along those lines. It considered that issues of contamination and collusion ought to be decided by juries and that there were undesirable consequences to judges being asked to examine the reliability of evidence when deciding admissibility. It pointed out that that would frequently require the prosecution to prove a negative—that there had been no collusion or contamination—which would often be impossible, and it much relied on the noble and learned Lord, Lord Mustill, in the case of H who said:


    "This is more than I am willing to accept. The possibility of innocent infection is one amongst many factors which the jury will have to take into account; but to treat it as a unique 'threshold issue' loads the scales unfairly against the prosecution, and hence the interests of those who cannot protect themselves".

The Law Commission therefore concluded that the law should remain as it is—in other words that the court should assume that evidence of bad character is true when considering its admissibility. We agree, and Clause 102 adopts the proposal in the Law Commission's draft Bill to put that on a statutory footing.

Lord Ackner: I am most grateful to the noble Baroness for her explanation. I should like to consider it at length, but at this stage I shall not press the proposition that the clause be removed.

Clause 102 agreed to.

Clauses 103 and 104 agreed to.

Clause 105 [Interpretation of Chapter 1]:

2.45 p.m.

Lord Ackner moved Amendment No. 147:


    Page 67, line 41, leave out subsection (2).

The noble and learned Lord said: Again, the Committee will be pleased, if not surprised, to learn that I can deal with this succinctly. The question that the judges raise is: how can a judge properly decide what evidence should be admitted without considering all the offences on which the accused is being tried? What is the answer to that question? I beg to move.

Lord Davies of Oldham: As the noble and learned Lord will appreciate, Clause 105(2) derives from the Law Commission's report on the subject and its draft Bill. It ensures that offences are treated in isolation when considering the question of admissibility. Thus evidence might be admissible on charge A but not on charge B. The fact that it is not relevant on charge B

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would not mean that it was inadmissible in the trial. Equally, admitting the evidence in relation to charge A would not make it admitted on charge B. The problem with the amendment is that it would remove this provision.

Clause 105(2) is required to make the position clear as I outlined it. We would not want evidence to be ruled inadmissible because, although relevant to charge A, it was not relevant in respect of charge B. Nor would we want evidence to be admissible across all charges because relevant to one of them. However, we recognise the concern, raised in the Lord Chief Justice's paper on the Bill, that when considering whether evidence should actually be admitted, the effect of the evidence on the proceedings as a whole should be taken into account. In other words, when applying the exclusionary test set out in Clause 93(3), the court should consider the prejudicial impact of the evidence on the trial as a whole, and not simply in relation to the charge to which it is relevant. That has always been our intention. We are happy to consider whether an amendment is necessary to put that position beyond doubt and will table one on Report if it proves to be so.

I hope that on the basis of that response, the noble and learned Lord feels able to withdraw his amendment.

Lord Ackner: I am most grateful to the Minister for his co-operative approach. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 agreed to.

Clause 106 agreed to.

Schedule 5 agreed to.

Clause 107 [Admissibility of hearsay evidence]:

Lord Thomas of Gresford moved Amendment No. 149:


    Page 68, line 15, leave out paragraph (d).

The noble Lord said: So we reach another watershed in the Bill. We now turn to the problem of hearsay evidence, which always relates to the difficulty of challenging it. When a person says that he has been told some information by a third party, two questions arise. First, did the third party actually say what the witness says that he said? Secondly, if he did say what the witness says that he said, is it true?

The difficulties can be illustrated through the unfortunate circumstances of yesterday, when Mr Andrew Gilligan told the Hutton inquiry what he had been told by Dr Kelly, who unfortunately died. The issue was whether Mr Gilligan was actually told what he said he was told and whether it was true. That is a basic problem with hearsay evidence, and one approaches the clause with that in mind.

We on these Benches find the whole clause objectionable, which is why the clause stand part debate is grouped with the amendment to which I am speaking. Even if one were to keep the clause in some

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form, it is highly objectionable as it is framed. In subsection (1), we object to paragraph (d), which says that in,


    "criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if . . . the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible".

The noble Baroness, Lady Scotland, told us all morning that she was looking for clarification and certainty in the law, and to that degree was prepared in some circumstances to dispense with the discretion that a judge may have in deciding, for example, the balance between probative value and prejudicial effect. Here the discretion is handed over entirely to the court as to whether the hearsay evidence should be admitted, subject only to subsection (2), where there are certain factors for the judge to bear in mind. Members of the Committee may feel that they are fairly obvious matters, but the provisions are extremely vague and broad and introduce into the law of evidence in criminal cases hearsay evidence wholesale. It can never be certain for a defendant that he will not face evidence of this sort; whether a judge admits it or not, it will be a matter for applications, either pre-trial or during the trial. We object in principle to the introduction of hearsay evidence of that type.

Coupled with the amendment is Amendment No. 150, which is not very helpful because subsection (2) is in truth concerned with subsection (1)(d), and if subsection (1)(d) were struck out as we wish it to be, subsection (2) would not apply.

I do not propose to address noble Lords at any length on those matters, but I want to hear why it is necessary to introduce such an unsafe and uncertain principle of the law of evidence into criminal trials. I am not going to repeat the speech that I made so many times that noble Lords must be weary of it, relating to the problems of miscarriages of justice and the impact that they have on the public's confidence in the criminal justice system. This is just another example in the Bill of attempting to obtain more convictions and thereby risking more unjust convictions and more miscarriages of justice. I beg to move.

3 p.m.

Lord Cooke of Thorndon: I offer qualified support for this chapter, chiefly because it contains Clause 107(1)(d), which I see as its great merit. I cannot therefore support Amendment No. 149, and I hope that the noble Lord, Lord Thomas of Gresford, will give the matter further consideration.

The reason for my qualified support of the chapter is that, to one's regret, there has been a failure by the English courts to redress a mischief of their own creation. The rule excluding hearsay evidence and some of the exceptions to it are entirely a creation of the courts over the centuries. Parliament never enacted such a rule. It might have been thought that, just as a rule was developed, so the courts would have accepted responsibility to modify it in the direction favoured by virtually all who have examined the subject in any

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depth—namely, by placing more weight on reliability rather than technicality. Instead, there has been in England and Wales much ossification—largely, I regret to say, achieved by the Appellate Committee of your Lordships' House, which has insisted on a strict bar even on hearsay of unquestionably high reliability, subject only to a list of exceptions now declared closed.

Notorious examples of that approach are well known to all criminal lawyers and may be found in all criminal textbooks. It is enough for me to give but one. In 1992, in the case of Kearley, the Appellate Committee held that, on a charge of drug dealing, police evidence was inadmissible that, within a few hours, some 20 customers or would-be customers had called at or telephoned the accused's flat seeking supplies, some of them asking for him personally. That decision was by a majority of three to two, with powerful dissenting speeches. However, the weight of the majority will be apparent when I mention that one of its members was the noble and learned Lord, Lord Ackner.

At least in part, some such decisions have invoked not only the hearsay rule, but a perhaps equally odd view that the rejected evidence was irrelevant. However, the Law Commission, on whose report this chapter of the Bill is based, appears to have accepted that some third party confessions, for example, previously inadmissible, would be admissible under their proposals. It is to be hoped that the reform now proposed, although it sorely needs simplification, will encourage the courts to a less austere view of relevance and more confidence in the common sense of juries, magistrates and trial judges.

In other common law countries, particularly Canada and New Zealand, the courts have moulded the judge-made law so as to accept broadly a general residual discretion to admit hearsay evidence of sufficient apparent reliability. The English courts have scarcely budged, however, and the time is clearly more than ripe for Parliament to step in, as has been recommended by many authoritative reports.

Unfortunately, though, the Law Commission, after a meticulous review of the field, produced a highly elaborate set of proposed new rules in a pattern reflected in the present Bill. In complexity, it far outdoes the existing law. I would respectfully urge the Government to heed the advice of the noble and learned Lord, Lord Woolf, the Lord Chief Justice. In his background paper lodged in the Library, he puts it thus:


    "What is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in an appropriate manner".

It seems to me that a similar rule should apply in summary proceedings, bearing in mind that any misapplication of it could be corrected on appeal or otherwise—by review, for instance.

Indeed—and this is the point at which I come to Amendment No. 149—just such a clause is already in the Bill. Clause 107(1)(d) makes hearsay admissible in criminal proceedings if, as the noble Lord, Lord Thomas, said,

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    "the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible".

The genesis of that provision is in a clause rather tucked away in the Law Commission's draft and somewhat less strongly worded by the commission. The drafters of the Bill have moved this provision to a more prominent and more logical place and have improved the wording. The provision is intended to override all the detailed ones, even the complicated ones in the Bill, about multiple hearsay. That accords with the Law Commission's intention which regarded its clause, tucked away as it was, as an overriding provision. The commission suggested that the power would be used only exceptionally. However, neither in its draft nor in the Bill before the House is there that limitation.

So the Bill contains this general provision, giving the courts a flexible weapon to achieve justice in criminal law. The other elaborate, intricate provisions of the chapter are not essential and indeed distract from the real issue. In so saying, I venture to speak from more than 30 years experience as a judge, largely in New Zealand, but in various other countries also, including some five years as a Lord of Appeal in this House. I am not involved in politics in the slightest way nor even interested in tactical manoeuvres. With deference, but with a conviction born, I claim, of impartiality, I would suggest to the Minister and his colleagues that they might demonstrate open-mindedness, think again and move towards a more simple approach, a change in the present Bill which would, in importance and radicalness, be nothing by comparison with their proposed constitutional changes.


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