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Lord Clinton-Davis: My Lords, does the noble Lord agree that, at the very least, the possibility of applying Clause 84(3) should be put before the defendant in every such instance? Does he agree with that?

Lord Carlisle of Bucklow: My Lords, I agree with it as it stands, but how will it be done? The noble Lord, Lord Clinton-Davis, and I have both practised in the

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criminal courts. At a particular stage, is the prosecution to say to the magistrates, "I propose to ask a certain question which requires your clerk to tell the defendant that he has the right, if he wishes, to object to that question which I am about to ask"? If so, what is the defendant to make of it? It would imply immediately to the magistrates that the man has a record which the prosecution wishes to put in. I do not think that it is practical for it to proceed in that way.

The only way that such a protection could proceed would be on a counsel-to-counsel basis and in the Crown Court, I assume. One would inform one's opponent of the intention to put in such evidence, although there is no requirement in the Bill to do so, and thereby give him an opportunity to object. However, surely it would be much more sensible to use the exclusionary rule whereby the evidence is not admitted unless the leave of the court is given.

Baroness Scotland of Asthal: My Lords, I have listened with great care to everything that noble Lords have said about the provisions. I listened also with a little pain. It is unusual for the noble Lord, Lord Kingsland, to use such intemperate language. I think that he said that the Government's provisions are "profoundly pernicious" and that they make a "complete mockery" of and are "an ocean-going departure" from the current law. He sets his stall very high indeed. For the purposes of this debate, may I respectfully suggest to him that he has set it a little too high?

I have listened with care also to the comments of the noble Lord, Lord Thomas of Gresford. This is a very important issue which has been highly contentious in debate. I hope that I will be able to explain with greater clarity why, in some ways, we have departed from the regime or scheme advocated by the Law Commission.

I acknowledge and am pleased to see that by virtue of this amendment both opposition parties agree with us that the current rules in this area—which have been profoundly criticised by the Royal Commission on Criminal Justice in 1993, the Law Commission report, Evidence of Bad Character in Criminal Proceedings and Lord Justice Auld's review of the criminal courts published in 2001—need to be addressed comprehensively. I hear too what was said by the noble Lord, Lord Alexander. I paraphrase his remarks. The thrust of his argument is that we trust juries but not that much and only in precise circumstances. I say right at the beginning that we do not accept that these provisions would lead a person to be damned by their past even when the evidence does not justify it. That cannot with propriety be said in relation to these provisions.

I hope that I shall be able to deal with the request of my noble friend Lord Clinton-Davis in relation to convincing the House of the propriety of our suggestion. I say to the noble Lord, Lord Carlisle of Bucklow, that the position in the magistrates' court, as he will know well, is that if any defendant's liberty is, or may be, in peril, legal aid will be available. I refer also to the good offices of the magistrates' courts clerks, but I shall develop that further later because we are listening to what noble Lords have said and we have certain possible solutions.

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We are in agreement that the current rules will not do, that they need to change and that a new provision needs to be put in place. Clearly, there is scope for argument on how exactly the rules should be reformed. The views expressed in the House today represent some of the many that have been expressed on this subject. However, there is a wide consensus that there must be some change, and that too has been reflected in our debate, in particular in Amendment No. 174A that has been tabled by the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay.

Before turning to the detail of that amendment, I should like briefly to address a related point. I am aware that the noble and learned Lord, Lord Ackner, has tabled a number of amendments in this group that would have the effect of removing much of this part of the Bill but offer no alternative in its place. This would, in effect, leave the law very much as it is at present. I should like to say a few words about why we do not consider that that would be a satisfactory way to proceed.

As I say, widespread dissatisfaction has been expressed about the current law. It is plagued by complexity, having developed in a piecemeal fashion over the past century, leaving the rules scattered across statute and common law. This is undesirable, opening the way for inconsistent decisions and time-consuming legal arguments. It can also have a chilling effect on the application of these rules, resulting in evidence of bad character not being admitted even where it would be appropriate to do so. It was instructive that in Committee a number of noble Lords prayed in aid issues such as the inability to adduce evidence about acquittals as if that was the current law. I think that we dealt with that in Committee but we know that that is not the current law. Perhaps that evidenced the misunderstanding that many practitioners can have albeit that they practise in our courts on a daily basis. Noble Lords will be aware of the helpful paper circulated by the Association of Chief Police Officers prior to this debate in which it highlighted how the complexity of these rules can act to keep valuable evidence out of court. Moreover, the current rules offer scant protection for witnesses.

It is time, therefore, for a new statutory framework. That is the object of this part of the Bill. These proposals have given rise to a great deal of debate. Our intention has been to build on recognised concepts in the current law, but state them in a comprehensive and coherent fashion accessible to all and capable of straightforward application. Justice for All applies to victims, witnesses and the accused. This is not about securing convictions at the expense of the rights of defendants. Clear safeguards have been built into the scheme to ensure that the burden of proof continues to rest on the prosecution and that trials are conducted fairly. However, this is about ensuring that the rules are clear and facilitate the admission of evidence of previous offending or other misconduct where it is appropriate and safe to do so.

I turn now to Amendment No. 174A, which, when taken with other amendments in this group, would delete this part of the Bill and insert into the Police and Criminal Evidence Act 1984 an alternative scheme for

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admitting evidence of bad character. As we have heard, that scheme is, almost entirely, that proposed by the Law Commission in its 2001 report and which formed the basis of our own proposals.

In effect, this invites me to set out the key differences between our own proposals and those of the Law Commission. I am happy to do so. As I hope to demonstrate, the Government have drawn in good measure on the Law Commission's proposals—and many of the apparent differences are simply ones of structure. However, there are areas where we believe that it is right to go further, which I shall seek to explain.

Before doing so I should correct an impression that I am sure may have inadvertently been given by the noble Lord, Lord Kingsland, that propensity was something which the Law Commission disavowed. The Law Commission was clear that evidence of propensity should not be excluded per se but admitted where it had a sufficient bearing on the proceedings. We agree with the Law Commission. Our provisions simply make that explicit. I invite the noble Lord's attention to page 50 of the Law Commission's report, Evidence of Bad Character in Criminal Proceedings, starting at paragraph 4.3. Your Lordships will see that it deals with the test in the leading authority in DPP v P and says that it is too vague. Paragraphs 4.7 and 4.8 deal with the evidence of propensity admitted as similar fact evidence. Pages 51 and 52 contain an analysis of the prosecution's failure to proceed in the case of B(RA). I respectfully suggest that it is wrong to say that the Law Commission felt that the measure should be excluded. I shall not read into the record the totality of the document but it benefits further careful consideration.

5.30 p.m.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness for giving way. In the draft Bill attached to the Law Commission's report one of the subsections which appears in my amendment states:

    "For the purposes of this section, whether the defendant has a propensity to be untruthful is not to be regarded as a matter in issue in the proceedings".

I absolutely accept that there is an exception to that, which is the similar fact evidence exception. I could not have made that clearer in my speech. Indeed, I have the advantage of having my noble and learned friend Lord Mackay of Clashfern sitting behind me who made the leading judgment on similar fact evidence in DPP v P.

Baroness Scotland of Asthal: My Lords—

Lord Lloyd of Berwick: My Lords, may I just ask—

Baroness Scotland of Asthal: My Lords, of course I shall give way but I remind the House that we are on Report.

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