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(a) a ruling on whether an item of evidence is admissible only with leave under section 82B;
(b) a decision whether to give leave under that section;
(c) a ruling under section 82M. 82P Rules of court



    (2) The rules may require a party who—


(a) proposes to adduce evidence of a defendant's bad character that is admissible only with leave under section 82B, or
(b) proposes to cross-examine a witness with a view to eliciting such evidence, to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.


    (3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).


    (4) If a party fails to comply with a requirement that has been imposed in relation to an item of evidence by virtue of subsection (2) (and not dispensed with by virtue of subsection (3)) the court may take the failure into account—


(a) in deciding whether to grant leave under section 82B; and
(b) where leave is given, in considering the exercise of its powers with respect to costs. (5) The rules may—


(a) limit the application of any provision of the rules to prescribed circumstances;
(b) subject any provision of the rules to prescribed exceptions; and
(c) make different provision for different cases or circumstances. (6) Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.


    (7) In this section—


"prescribed" means prescribed by rules of court;
"rules of court" means—
(a) Crown Court Rules;
(b) Criminal Appeal Rules; and
(c) rules under section 144 of the Magistrates' Courts Act 1980 (c. 43). 82Q Interpretation


    (1) In this Chapter—


"bad character" is to be read in accordance with section 82A;
"criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply;
"defendant" in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings;
"misconduct" means—
(a) the commission of an offence, or
(b) behaviour of a kind that, in the opinion of the court, might be viewed with disapproval by a reasonable person;

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"prejudice", in relation to an item of evidence and a defendant, is to be read in accordance with subsection (2);
"probative value" is to be read in accordance with section 82N;
"prosecution evidence" means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution. (2) For the purposes of this Act, evidence carries a risk of prejudice to a defendant where—


(a) there is a risk that the court or jury would attach undue weight to the evidence, or
(b) the nature of the matters with which the evidence deals is such as to give rise to a risk that the court or jury would find the defendant guilty without being satisfied that he was. (3) Where a defendant is charged with two or more offences in the same criminal proceedings, this Act has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.


    82R Minor and consequential amendments


    (1) In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness's conviction for offence may be proved if not admitted)—


(a) for "A witness may be" substitute "If, upon a witness being lawfully";
(b) omit "and upon being so questioned, if". (2) In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction of privilege against self-incrimination where defendant gives evidence) at the beginning insert "Subject to section 6 of the Criminal Evidence Act 2001 (inadmissibility of evidence of defendant's bad character)".


    (3) In section 16(2) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) for the words from "notwithstanding" to the end substitute "even though the Criminal Justice and Police Act 2001 (c. 16) would not prevent the question from being asked".


    82S Repeals


    (1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.


    (2) The rules referred to in subsection (1) include any rule under which, as an exception to the inadmissibility of hearsay evidence, evidence of a person's reputation is admissible for the purpose of proving his character, but only so far as the rule relates to evidence of bad character.


    (3) The following cease to have effect—


(a) section 1(3) of the Criminal Evidence Act 1898 (c. 36) (which makes provision as to the questions that a defendant may be asked about his bad character in cross-examination);
(b) section 27(3) of the Theft Act 1968 (c. 60) (admission of evidence of previous convictions for theft etc to prove that defendant knew goods to be stolen)."" The Commons disagree to this Amendment for the following Reason—


114ABecause they would result in a less satisfactory scheme for dealing with evidence of bad character.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A.

We now come to the part of the Bill dealing with the admissibility of evidence of bad character. There is a wide consensus in support of reform, both across the Floor of this House and throughout the criminal

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justice system and public. This part of the Bill is intended to provide a new statutory framework for admissibility. Amendments adopted when the Bill was considered on Report in this House would, however, replace the scheme proposed by the Government with, almost exactly, the draft Bill drawn up by the Law Commission that accompanied its 2001 report.

As I said at that time, there is much in the Law Commission scheme with which we agree, and much of the Law Commission's work and recommendations can be seen in the Government's proposals. However, we also consider that it is right to go further in certain respects. In particular, the Law Commission considered that a generally exclusionary regime should apply, that the rules should be based on excluding this sort of evidence and restricting its admission to circumstances where a number of conditions had been met.

However, we do not believe that that goes far enough in rebalancing the system to ensure that the rules promote the admission of relevant evidence, subject to considerations of fairness. Without that sort of rebalancing, courts and juries will continue to have withheld from them important evidence that will give them the full and proper picture of a case. In our view, therefore, a different approach is required—one of inclusion, which makes it clear that relevant evidence is admissible.

It will, of course, be for the prosecution to demonstrate in the course of proceedings how the evidence relates to the case. However, on the question of admissibility, we believe that it should be clear that relevant evidence is admissible, subject to the defendant applying for its exclusion. We therefore stand behind the inclusionary approach adopted by the Government in our original proposals. We have, however, always said that we would listen to constructive suggestions for change, to ensure that our proposals are cast in the best possible form. I indicated on Report a number of specific areas where we would look at our proposals to see whether improvements could be made.

We have done so, and noble Lords will see on the Marshalled List a number of proposals to modify the Government's scheme as originally introduced. They address a number of key concerns raised in this House and in another place. I shall set out their effect. Three of them are amendments proposed in another place, which I shall deal with first. The first proposed amendment relates to the definition of evidence of bad character. The definition that the Government originally proposed was that recommended by the Law Commission. However, concern was expressed that it was too vague and enabled evidence that was too remote to be admitted—although it will now find its place in the amendment.

It is important to bear in mind that the Bill will set out the future rules and conditions for admitting that sort of evidence. A wide definition is, therefore, important, otherwise potentially prejudicial evidence will fall outside it and thus outside the rules and safeguards in the Bill. However, we recognise that it is

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important to be as clear and precise as possible. We have therefore redrafted the definition to tighten the wording as far as possible, while maintaining a comprehensive ambit.

The revised wording will define evidence of a person's "bad character" as evidence of, or of a disposition towards, misconduct on his part. "Misconduct" is further defined as the commission of an offence, or other reprehensible behaviour. Our intention is to ensure that a wide range of potentially prejudicial evidence is caught by the definition, so that the rules and safeguards in this part of the Bill apply. However, the wording offers a tighter formulation for doing so.

The second proposal is to ensure that the defendant has clear notice of the prosecution's intention to rely on evidence of his bad character. That reflects a concern that a more inclusionary approach would lead to the admission of evidence where it was not appropriate or safe for it to be heard.

I make it clear that that is not our intention. We believe that the system needs to be rebalanced to ensure that relevant evidence is admitted unless good reason is shown to exclude it. However, we recognise that there must be a clear opportunity for a defendant to apply to exclude the evidence and for that issue to be decided by the court. That will be facilitated by having a formal requirement of notice. That is achieved by amending the clause dealing with rules of court to make it clear that rules must make provision for the prosecution to give notice.

Thirdly, there is a proposal in relation to the admissibility of juvenile convictions in adult proceedings—an issue which I know greatly exercised the noble Baroness, Lady Walmsley, among many others. At present, no mention may be made of these convictions. We think that that approach is too restrictive. Our proposals will lift that absolute prohibition, making such evidence admissible subject to the general scheme of the Bill.

Concern has been expressed that that goes too far, that a person's record at that age will not have the relevance of later offending and that particular considerations apply in the context of juvenile offending. We have sympathy that admission here should take place on a more restricted basis and therefore propose that these convictions should be admissible only where the interests of justice specifically require it. We intend this test to exclude a sporadic record for minor offences, while ensuring that continual or persistent offending or convictions for very serious offences are capable of admission.

The Government also propose a fourth amendment which I shall move in this House today relating to the presumption that a conviction for the same or a similar offence should be admitted. We are proposing here a different approach and have now linked it to the category of relevant evidence—Clause 93(1)(e)—to make it absolutely clear that we do not intend that presumption to operate to admit irrelevant convictions. It may be helpful if I explain how the presumption will operate.

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Where propensity to commit an offence is a matter in issue in the case, the presumption will be that convictions for the same or a similar offence may be admitted to establish that propensity. Clause 96(1)(a) sets out where a propensity of this kind will be a matter in issue. This is intended to cover all circumstances where this evidence will assist the courts but not where the propensity makes it no more likely that the defendant committed the offence. Where that is so, convictions for the same or a similar offence will, in principle, be admissible. However, that does not mean that such convictions will inevitably be admitted. Subsection (3) makes it clear that the presumption does not apply if the court is satisfied, by reason of the length of time since the conviction, or for any other reason, that it would be unjust. Furthermore, the defendant will be able to apply for the evidence to be excluded on the basis that the probative value of the evidence is outweighed by its prejudicial effect.

In summary, a person's record for committing the same or similar offences will be admissible, to show propensity, provided that, first, the defendant's propensity to commit the offence charged is relevant to the issues in the case; and, secondly, the probative value of the evidence outweighs its prejudicial effect.

The rules on evidence of bad character are in pressing need of reform. We must ensure that they are restated in a clear and comprehensive form. The Government's proposals have drawn on the existing jurisprudence and the excellent work of the Law Commission. We have responded to the key concerns expressed and believe that our proposals, modified as suggested, represented the clearest and most satisfactory way forward. For that reason, I move that this House does not insist on its amendments, as set out on the Marshalled List, accepts the amendments to the words restored and accepts the amendments in lieu. We have tried in crafting these new amendments to bring even greater clarity to that which we had before so that our intent is the more plain.

Moved, That the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A.—(Baroness Scotland of Asthal.)

5.45 p.m.


114BLord Kingsland rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 114 to which the Commons have disagreed for their reason numbered 114A, leave out "not".

The noble Lord said: My Lords, I shall also be speaking to Lords Amendments Nos. 115 to 125 and 127 to 131. These are the consequential amendments in response to the Commons vote to insist on their original text. Before I begin, I should like, if I may, to ask a short question of the noble Baroness. I hope that she will be prepared to answer it. I refer to Clause 105(3)(b) of the Bill as it first reached your Lordships' House, right at the top of page 68. It states:


    "Nothing in this Chapter affects the exclusion of evidence . . . on grounds other than the fact that it is evidence of a person's bad character".

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Is it the noble Baroness's understanding that that provision has the effect of preserving the protection of Section 78 of the Police and Criminal Evidence Act 1984 for the bad character chapter?


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