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Lord Thomas of Gresford moved Amendment No. 160:

The noble Lord said: We come to the general discretion of the court to exclude evidence. This clause ensures that in every case where hearsay evidence is introduced there will be a double application: the first under the relevant clause—whether one to replace Clause 107, Clause 114 or whatever—and the second under Clause 119. The clause introduces the interesting concept that a court,

    "may refuse to admit a statement as evidence of the matter stated if . . . the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it".

Undue waste of time? That strikes at the root of the criminal justice system. Undue waste of time is a difficult concept to define. What is undue and what is a waste of time, when we are considering the liberty of the subject?

However, our amendment is to subsection (2). The Explanatory Notes state:

    "Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence".

All that we seek to do through the amendment is to write into the Bill the words in the Explanatory Notes. I do not understand how the Government can object to that, although we should probably be satisfied if the noble Baroness would make it absolutely clear that the power of the court to exclude evidence where its prejudicial effect outweighs its probative value is maintained and that it relates to every other provision in this chapter dealing with hearsay evidence. I beg to move.

Baroness Scotland of Asthal: Clause 119 indeed provides the court with a general discretion to exclude an out of court statement, if it is satisfied that the statement's probative value is substantially outweighed by the danger that admitting it would result in undue waste of time. It will enable the court to exclude superfluous hearsay evidence.

The Law Commission took the view that it was important to provide the courts with some power to control the quantity and quality of out of court statements that are adduced. Evidence that is wholly irrelevant is not admissible at all—nor should it be—

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but out of court statements that have marginal relevance to the issues will be prima facie admissible, providing that they meet the criteria in Clause 103. The commission was concerned that in some cases that evidence will be superfluous to the issues and highlighted the risk that the parties might seek to use every conceivable piece of evidence, no matter how marginal its value, to bolster their case. We agree with the commission's conclusion that an exclusionary discretion is necessary to ensure that court time is not wasted and to address concerns that the greater admission of hearsay will lead to barely relevant evidence being adduced. Of course, the evidence that the prosecution seeks to adduce may still be excluded by the court in the exercise of its discretion at common law or under Section 78(1) of PACE. However, that would not provide a means of controlling the quantity and quality of evidence that would be used by the defence.

Clause 119(1)(b) will therefore enable the court to exclude superfluous hearsay statements from any party if it is satisfied that the value of the evidence is substantially outweighed by the undue waste of time that its admission would cause. I hope that the noble Lord will feel content with that full explanation.

Amendment No. 160 would insert wording that would make it clear that the common law discretion continues to apply to evidence admissible under this part. I can offer the assurance that that is indeed the case, and is achieved by Clause 119(2)(b). I hope that will be of use to the noble Lord and practitioners.

Lord Thomas of Gresford: Could the Minister just say the magic words that there is a power to exclude prosecution evidence where its prejudicial effect outweighs its probative value? If the Minister could say that, we would not need the amendment.

Baroness Scotland of Asthal: I have said it. I said that Clause 119 provides the court with the general discretion to exclude an out-of-court statement if it is satisfied that the statement's probative value is substantially outweighed by,

    "the danger that to admit it would result in undue waste of time".

I have already said that probative value as defined in Section 78 includes prejudicial value.

Lord Thomas of Gresford: I take it that the noble Baroness means prejudicial effect. The incantation was not exactly correct, but I believe that I have heard the message and I do not ask her to repeat it. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 160A had been withdrawn from the Marshalled List.]

Clause 119 agreed to.

Clauses 120 to 128 agreed to.

Schedule 6 agreed to.

Clauses 129 to 132 agreed to.

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Baroness Walmsley moved Amendment No. 160B:

    After Clause 132, insert the following new clause—

Where a victim or witness is unable, due to visual impairment, to identify a suspect visually, an auditory identity parade may be used."

The noble Baroness said: This is a probing amendment. I have been briefed on this matter by the RNIB, Scope and the Guide Dogs for the Blind Association.

It is widely believed that the Government's intention behind the Bill is to make it easier to convict criminals. The Minister is aware that we on these Benches have considerable problems with a few of the ways in which they are trying to do that. However, without this amendment, the Bill could fail to provide effective protection for blind, partially sighted and other disabled people against harassment and assault inspired by disability prejudice, hatred and crime more generally.

With one in four disabled people having been subject to harassment on grounds of disability, rising to nine in 10 people with learning disabilities, the need for action is urgent. Under other later amendments, we shall consider the penalties relating to a hate element in an offence against a person with a disability.

The amendment relates to the ability of blind and partially sighted people to participate in obtaining justice, as can all other citizens, by using that sense that for many of them is particularly acute—the sense of hearing. We seek to include in the Bill the words,

    "Where a victim or witness is unable, due to visual impairment, to identify a suspect visually, an auditory identity parade may be used".

Why is this amendment necessary? The RNIB, Guide Dogs for the Blind Association and NACRO have anecdotal evidence of police not always taking reports of crimes by visually impaired people seriously because the victims could not identify their assailant by sight. Assailants, of course, may be counting on that and may even target blind and partially sighted people on that basis. However, in some cases it might be possible for a visually impaired person to identify their assailant by the sound of their voice. If that were to happen, criminals would face an added deterrent and the partially sighted person could participate in justice in the same way as fully sighted people.

The evidence suggests that that is possible. Voice identity parades are already used in Holland. The first ever conviction for murder in the United Kingdom based on a voice identity parade was secured at the Old Bailey in December 2002. Assad Khan and Didar Bains were convicted after the witness, Raymond Sarong, identified Khan's voice in an auditory identity parade. A linguistics expert from Cambridge University was used to make sure that the process was sound. Detective Sergeant McFarlane was commended by the judge for his work. Speaking after the case, DS McFarlane said that he would be recommending the technique to the National Crime Faculty. Following that, the Metropolitan Police are drawing up their own guidelines for the use of voice identity parades in consultation with the RNIB.

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RNIB and the Guide Dogs for the Blind Association welcomed David Blunkett's response to the House of Commons Second Reading briefing on voice identity parades. The Home Secretary said:

    "I am firmly of the view that voice recognition is feasible and I have asked my officials and scientific advisors to reconsider this area urgently to see what steps we can take to further encourage the use of voice recognition by police and criminal justice agencies".

Those words were a most welcome step forward. However, I wonder whether the Minister can give us an update on the progress of this issue and perhaps reassure us that this wholly reasonable addition to the toolkit of evidence available to the police will be available for use in the future. I beg to move.

Baroness Anelay of St Johns: I have put my name to this amendment, which of course I support. I think that both the noble Baroness, Lady Walmsley, and I are hoping that the Minister will tell us that the amendment is not required not only because there is already permission for an auditory identity parade to take place, but because it will in future be used more frequently. The noble Baroness has already referred to the Khan and Bains case where a conviction was secured. Could the Minister say whether her understanding accords with mine—that such auditory identity parades are very infrequently used, and that there is perhaps a resistance to their use by the police or an uncertainty about how to proceed with them? Could the Minister tell us whether the Government are doing anything to encourage the further use of such identity parades where it is proper so to do?

The noble Baroness, Lady Walmsley, quoted from the words in another place of the Home Secretary who directed his officials urgently to review this matter. That was back in May. As the word "urgent" was used, one would think that something might have happened since then. I hope that we will learn that use of the word "urgent" by this Government means that something has happened since May.

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