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Lord Carlisle of Bucklow: The Minister implied that the test was to be as it is at present, but is that what is achieved by Clause 93? She will remember the remarks made by the noble and learned Lord, Lord Cooke, when we previously discussed the matter on the words "such an adverse effect". Do those words exist in the present test, or has the Minister, by Clause 93(3), changed the balance of proof?
Clause 90 provides the definition of "bad character" in order to put these matters on to a statutory basis. Prior to the amendments that we discussed on the last occasion the Government intended to cast that net very wide indeed because we were removing the common law rules which would have constrained. For that purpose, we wanted all those issues to be subject to the new statutory scheme on an inclusive basis, and then leave the issue to the judge who would be charged with balancing the issues of fairness to make the determination.
We appreciatewhich is why we see Clause 93(3)that the probative nature of the evidence will be of importance when determining whether and to what extent the defendant's bad character should be admitted into evidence. It is right that the judge, in exercising his role almost as "manager" of the judicial process so as to make sure that there is a fairness and equality of arms, should have the opportunity in exercising discretion pursuant to Clause 93(3) to weigh the prejudicial and the probative, one against the other.
Lord Renton: The noble Baroness has made a valiant attempt to justify the use of the expression "bad character". In Clause 93, we are talking about the defendant's bad character. Under present law as I have always understood it, and I have had a lot of experience of it, previous convictions were the only evidence of bad character that the prosecution could produce. There are many kinds of bad character, but they are indefinable. Chapter 1 and Part 11 of the Bill do not make a strong attempt to define "bad character".
Baroness Scotland of Asthal: On the previous occasion, we debated these issues in relation to Clause 90 at length. Indeed, we took some time together to look at the jurisprudence that currently exists and compare it to the various subsections of Clause 93, which are there enumerated.
It was suggested that issues of character are narrowly drawn, but perhaps I may invite the noble Lord to look at the debates we had on that occasion. We enjoyed a detailed discussion of the current jurisprudence, which showed the wider ambits that we now have. As I said, Clause 93(3) preserves the opportunity for the court to make that determination. I suppose that there is a change in emphasis because,
However, whichever way the coin is turned, we say that one arrives mainly at the same place. The fairness of the proceedings will be the determining factor: the evidence should be admitted if its probative value outweighs its prejudicial effect and, conversely, it should be excluded if its prejudicial effect would outweigh its probative value.
Lord Cooke of Thorndon: The noble Baroness has just stated the existing law with perfect accuracy. However, it is not clear to me, and, if I may say so, it has become increasingly unclear as the debate has proceeded, what function Clause 93 is intended to serve. Is it intended to change the existing law or is it not? If the emphasis is still to be on the judge having a duty to weigh probative value against prejudicial effect, that is the existing law. One can talk about a change of emphasis, and so on, but ultimately, as the noble Baroness said, it will come to the same thing. It is not at all clear what purpose Clause 93or, indeed, this whole chapterwill achieve. Why not leave it to the common law?
Baroness Scotland of Asthal: One difficulty is that there has been a great breadth of difference in the way these provisions have been interpreted. If one considers the argument that has ranged, on the one hand the Government have said, "We are changing the balance. It is a nuanced balance but, none the less, it is to encourage and enable the court to include evidence which should properly be included and put before the jury to determine". We have had an exclusionary approach in the past but we are changing that in terms of emphasis. However, we are retaining the core principle, which is necessary for fairnessnamely, to balance the two. We are modernising the approach and bringing it together in one place.
Therefore, there is obviously opportunity to broaden the concept. But Clause 93 should be capable of bringing about greater clarity in relation to those rules. In its report, the Law Commission underscored very clearly that this was not only a very complex area but one which merited a new look and a statutory framework. One will see that theme running through its report. We have sought to bring about that statutory framework and to bring clarity in terms of how it should be operated.
Some say that there is a huge difference between the approach being inclusionary or exclusionary. We, the Government, do not say that that is so. We believe that it is an issue of emphasis, and we trust that the judiciary will be able to operate within the statutory framework in a way that will guarantee fairness and parity, as has been the case in the past.
Lord Lloyd of Berwick: I believe there is much to be said for the amendment as it seeks to introduce words with which we are all familiar. What I do not understand is whether the Minister is saying that it is unnecessary to introduce those words because they are included within subsection (3) by virtue of the meaning that has been given to them in the Police and Criminal Evidence Act.
Baroness Scotland of Asthal: I am so sorry. I beg your Lordships' pardon. I believe that I am over-tired and I almost forgot that I was standing up, which was a great discourtesy when the noble and learned Lord was standing. I beg his pardon.
As I have already said to the noble Lord, Lord Kingsland, the phraseology has been accepted as good law and it is well understood and well used. We are replicating that. I hear a noble Lord asking from a sedentary position, "Why change it?" I ask the same question of the noble Lord because those words are used in Section 78. We are not changing it. We are keeping the same phraseology, which is well understood and easily capable of being identified. We believe that that is perfectly fine.
Lord Kingsland: I am extremely pleased to hear from the noble Baroness that Amendment No. 144 is unnecessary because it will be implied into the jurisprudence under Clause 93(3) when, as undoubtedly it will be, it is considered by the courts in future.
However, I should not like the noble Baroness to believe that the Opposition accept that the changes made by Clause 93 are marginal. They seem to me to be radical in two respects: first, we now have a general inclusionary rule, rather than a general exclusionary rule; and, secondly, that inclusionary rule is subject to a discretion to exclude only in three of the eight casesthat is, in subsections (1)(d), (1)(e) or (1)(h) of Clause 93. That is a matter which we believe should be reconsidered on Report in the light of what the noble Baroness said today.
A number of commentators have referred to Clause 93 as the "round up the usual suspects" rule. That phrase was made famousindeed, immortalisedby Captain Renault in the well-known film "Casablanca". I suppose that those who have seen the film several times might like to add somewhere in the Bill the first part of Captain Renault's sentence:
Lord Ackner: I have only this comment to make. I believe that this clause requires such drafting that it will be far more convenient to start from the beginning. I have one particular problem. Clause 93(3) states:
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