Criminal Justice Bill

Public Bill Committee, 23 January 2003.

Standing Committee B

Criminal Justice Bill

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful for the opportunity to speak about the Programming Sub-Committee. I thank the hon. Members for Nottingham, East (Mr. Heppell) and for Rayleigh (Mr. Francois) for their co-operation in achieving a very satisfactory result in that Committee and, indeed, in this Committee's proceedings so far. It is important that we have adequate time to discuss the very real issues raised by a Bill of such length and complexity, but we might not have done had we proceeded with the initial programme. Having made the necessary changes, which I commend to the Committee, we are now in a position to proceed in good order.

Question put and agreed to.

Clause 81 - ''Bad character''

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 467, in

clause 81, page 50, line 10, after 'which', insert 'clearly'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 468, in

clause 81, page 50, line 10, after 'which', insert 'conclusively'.

No. 361, in

clause 81, page 50, line 10, leave out 'or tends to show'.

No. 362, in

clause 81, page 50, line 11, leave out '(a)'.

No. 469, in

clause 81, page 50, line 11, leave out 'committed an offence' and insert

'been convicted of a previous offence of similar facts as the one with which he is charged'.

No. 363, in

clause 81, page 50, line 11, leave out from 'offence' to end of line 13.

No. 395, in

clause 81, page 50, line 12, leave out

'or is disposed to behave'.

No. 434, in

clause 81, page 50, line 13, at end insert

', and includes a question put in proceedings which makes reference to, or is asked with a view to eliciting, such evidence'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 467 is in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath). We also tabled amendments Nos. 468 and 469, and put our names to amendments Nos. 361, 362 and 363.

The clause is at the beginning of part 11, which is very important. It deals with evidence and, in particular, evidence about character. Party colleagues and members of the Select Committee on Home Affairs have the greatest concerns about the Government's proposals, and we shall gradually build up the arguments as we seek to amend the different elements of the Bill. To put matters simply, however, there is concern that allowing evidence about character to be introduced much more frequently will result in significant prejudice to the defendant, who should be judged on the facts in the case, not the facts of his life.

Clause 81 defines bad character, but our probing amendments would amend the definition by reducing the opportunities—or raising the threshold—for introducing evidence of bad character. We table them without prejudice to our view that the whole proposal has major defects, and we shall argue that it gives rise to a significant prejudice, which is not dealt with. Through the amendments, we seek to temper the extreme nature of the proposal.

Amendment No. 467 would insert the word ''clearly'' so that the clause read:

''For the purposes of this Chapter, evidence of a person's bad character is evidence which clearly shows or tends to show''.

Amendment No. 468 is a stronger alternative, which would insert the word ''conclusively'' in the same place. Amendment No. 469 concerns a different, but important, point. Paragraph (a) reads:

''he has committed an offence''.

The issue should not be whether someone has committed an offence; it should be whether they have been convicted of an offence. What a person did in the past should not count, irrespective of whether it has been proved. The justice system works reasonably well on the basis that the ticks are in the box once you have been charged and found guilty or you have admitted your guilt. I hope that the Minister sees the importance of making sure that amendment No. 469 is accepted. The wording in the clause is completely wrong, and we should take care not to go down that road.

The first of the joint amendments, amendment No. 361, would remove the words ''or tends to show'' for evidence showing ''bad character''. Like our Conservative colleagues we believe that it is not enough that evidence ''tends to show''—it must ''show''. It must be straightforward. Perhaps we could debate later how we can alter that threshold.

Amendment No. 362 is a probing amendment, and would have the same effect as our amendment on ''been convicted'' rather than ''committed an offence''. It aims at the same objective of replacing the words

''committed an offence'' with something more acceptable mentioning the fact that there has been a conviction. I hope that the Minister will accept that it is ''conviction'' that is material, not commission of the offence.

Amendment No. 363 is a probing but important amendment, which would reduce the test simply to previous convictions. That is because clause 81(1)(b) is an extremely—extraordinarily—widely drawn precondition. It suggests that the ''bad character'' test, which is the test of when something can be triggered through admission, could be met if evidence shows that the defendant

''has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person''.

James Clappison (Conservative, Hertsmere)

I am listening with interest to the hon. Gentleman. I may not agree with him entirely, but there is something in what he says. Does he agree with me that few of us can honestly say that we could pass that test?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I wonder whether any of us in the Committee, if we were summoned for an offence before a court, could not be said to have behaved or have been disposed to behave—which is much more subjective—in a way that might be viewed with disapproval. That opens a Pandora's box of possibilities. I doubt that there is a member of the Committee who has not said or done many things that will have been viewed with disapproval by some of their constituents—and they are the people whom we are trying to keep happy. It is impossible to judge, for all sorts of reasons. We are getting off on a very wrong foot.

My hon. Friend the Member for Somerton and Frome and I have considerable concerns about this part of the Bill. Perfectly good reasons exist to get rid of the old uncertainties and to replace them with new certainties. We do not dissent from that view. There may be very good reasons to remove the common law rules and replace them with a codification of rules. I have signed up to that in principle.

Good arguments exist that rules of evidence about character should be included in one place, so that everyone who is involved in criminal law can find them. That would advantage not only lawyers but lay people and, indeed, defendants. Defendants who end up in prison spend a great deal of time looking through Acts, if my post—and other people's post—is anything to go by.

It is very important that we understand that there are obvious occasions when a person's bad character features in the case. The most obvious example is when an individual challenges someone else's character. If a person asserts that someone else is untruthful, it is quite reasonable that he can expect the fact that he may also be untruthful to be put in court for the jury to consider. If an individual asserts that someone else has a previous conviction, he cannot expect the trial to take place without his previous convictions being asserted. There are logical occasions when character

comes into the frame. However, that is done by choice and because there is a specific reason for it to happen.

A defendant will sometimes agree to include references to his character, and that is entirely reasonable. We can all think of many cases in which someone will admit to something in public because he believes that it is better to come clean. Whether through correspondence as MPs, from what we have read in local newspapers, or from cases with which we have been involved, we have all had experience of cases in which the defendant is honestly not guilty. However, because the usual suspects are the easiest suspects to pick up, sometimes a person who is not guilty may say that he has committed similar offences before but has been going straight for five years. He has a job, has settled down, and has a girlfriend, or a wife and kids. He honestly has not committed the crime, and he does not mind whether the jury know that he has ''previous''. That is reasonable to say. However, it is unreasonable for other people to elect to make that information known without safeguards.

This is similar to the previous sitting, at which the interventions from the hon. Member for North Down (Lady Hermon) were so effective. I know that the Minister will say later on whether there is a fair trial test. However, that is all about a proposal to change the presumption. If the clause is passed unamended then, instead of presuming that a person's previous criminal history should not be in the frame, previous criminal history will be the starting point, and the defendant will have to show why it should not be. We regard that as a considerable disadvantage.

I hope that colleagues in other parties will contribute in a moment to stand up against the most extreme and widely drawn parts of clause 81. We must also look carefully, as the hon. Member for Beaconsfield (Mr. Grieve) regularly argues, at the exact wording that is before us in each of the definitions. I appreciate that clauses that give definitions are not the most exciting ones. However, they are crucial as we go through this part, which contains many definitions. If we get the definitions wrong, and if we draw them too widely, significant injustice will be done.

I end by saying that the Home Affairs Committee was very clear that it had difficulty with the proposal to allow previous convictions to be automatically admitted at trial. It believed that that could lead to miscarriages of justice. Research supports that, so it is not just speculation. The Home Affairs Committee made two points in particular. It said that to allow previous convictions to be automatically admitted makes weak cases persuasive. One only has to add in the fact that that person has been guilty of an offence before, and the rest of the straws suddenly come together to make a brick for the jury—or might do. We should also be careful, because the provisions would allow usual suspects to be collected much more often, and put them at risk of being brought before the courts more regularly.

I hope that hon. Members not only will be sympathetic to the amendment, but think carefully about phrases such as, ''tends to show'', which is loose,

and, ''has committed an offence.'' We should be talking about convictions, not offences.

Humfrey Malins (Conservative, Woking)

I shall speak to amendments Nos. 361, 363 and 395. I echo the words of the hon. Member for Southwark, North and Bermondsey (Simon Hughes) in saying that we have got off on the wrong foot. We are dealing with the issue of a defendant's character—a very important issue indeed. It is worth pointing out that the current system has not worked badly, and that there is no great cry from any who speak with authority for the widening of the scheme that the Bill would impose.

Sylvia Hermon (UUP, North Down)

Could the hon. Gentleman outline the present system and tell us what evidence of previous convictions is currently available, for the benefit of those of us who are not criminal lawyers? That would help us to understand the huge change.

Humfrey Malins (Conservative, Woking)

Certainly. The current position is that if a person of good character with no previous convictions is in the dock, the judge will give a direction to the jury that says that that good character not only supports the defendant's credibility—his ''believableness'', if there is such a word—but is relevant in considering his or her propensity to commit a crime. There is therefore a positive direction in favour of the defendant. Previous convictions are currently admitted in about 20 per cent. of cases, for various reasons.

First, as the hon. Member for Southwark, North and Bermondsey said, if a defendant attacks the character of a witness, they cannot expect their own character to be kept out of the case. For example, if the defendant, through his counsel, says to the policeman, ''You're a liar, you're a cheat, and you're dishonest in the evidence you're giving,'' the defendant's character can be considered.

Secondly, the defendant's character can be considered by consent. Sometimes a defendant will say, ''As a matter of fact, it's true that I've got six previous convictions for dishonest offences, but in each case I pleaded guilty. This is the first time I have ever pleaded not guilty, and that can be confirmed.'' Saying that can sometimes work to a defendant's advantage.

The third situation is much less common and is called ''similar fact evidence''. If one is charged with burglary and one has a string of previous burglaries that have a strikingly similar fact in common, such as the leaving of a calling call or a particular modus operandi—the courts will not accept it unless it is strikingly similar and narrowly defined—character will be considered.

Paul Stinchcombe (Labour, Wellingborough)

I am no criminal lawyer, but will the hon. Gentleman confirm that the matter is slightly broader than he says, in that previous allegations that did not result in convictions can, in certain circumstances, also be admitted? Strikingly similar fact evidence is not the only thing that can lead to the admissibility of previous bad character evidence: anything that gives rise to the conclusion that the probative value of those previous

acquittals or convictions outweighs the prejudice that would be done to the defendant can also do so.

Humfrey Malins (Conservative, Woking)

Yes. The hon. Gentleman is right and refers, I think, to the case of R v. Z. Some of us may not approve of that, but that is by the by. Equally, the overall saving grace is the judge's discretion, usually under section 78 of the Police and Criminal Evidence Act 1984. It would take a powerful Crown argument to persuade a judge to move away from defending the interests of the defence.

David Cameron (Conservative, Witney)

Perhaps one way for us non-lawyers to understand this, most controversial, part of the Bill is to think that the Government are codifying current practice and then adding to it. Paragraphs (a), (b), (f), (g) and (h) in clause 84(1) all codify existing practice, and (c), (d) and (e) introduce new and controversial provisions. Does that help?

Humfrey Malins (Conservative, Woking)

My hon. Friend is absolutely right. There is a move to codify existing law, which is welcomed in some quarters, but the provisions go further. They establish existing law but also widen it in a way that most of us believe to be dangerous.

Dominic Grieve (Conservative, Beaconsfield)

I want to pick up the point made by the hon. Member for Wellingborough (Mr. Stinchcombe). Does my hon. Friend the Member for Woking (Mr. Malins) agree that, under the present rules, bad character other than convictions is rarely admitted? That is partly because people rarely investigate such issues, unless they are really pertinent to the case in question. Secondly, it is because the whole slant of the common law rules means that they do not lend themselves to such a course of action, except in exceptional circumstances. These proposals would make that commonplace.

Humfrey Malins (Conservative, Woking)

Yes; my hon. Friend is absolutely right. The admission of bad character in a criminal case in the circumstances outlined by the hon. Member for Wellingborough is a rare occurrence. In fact, I do not know whether I have ever come across such a situation. My hon. Friend is right. If the proposals were adopted, that would become commonplace.

David Kidney (Labour, Stafford)

Has the hon. Gentleman had the opportunity to read Law Commission report No. 273 on evidence of bad character? Page 52 of that report discusses a recent line of cases that admitted lots of evidence of bad character, other than convictions, called ''background evidence'', not only acquittals of Z. Does he accept that the present rules allow the admission of bad character other than convictions and that the amendments would narrow the existing law?

Humfrey Malins (Conservative, Woking)

I have seen the Law Commission report. I am aware of that line of cases but, unlike some of those who contributed to the Law Commission report, I have the benefit of the daily experience of the cases in which I am involved—the nuts and bolts of trials. I know instinctively that, 99 times out of 100, the protections offered to defendants under the common law, not least through the Police and Criminal Evidence Act 1984, are strictly adhered to by judges. The desire to codify the law is acceptable,

but the present proposals would widen it a step too far, or even several steps too far, which is why my hon. Friends and I hope to be able to vote on amendment No. 363 when we come to it.

Amendment No. 361 would leave out ''or tends to show'' in line 10, and amendment No. 363 would leave out paragraph (b) in its entirety. Amendment No. 395 leaves out the words

''or is disposed to behave.''

The real mischief is contained in clause 81(1)(b), which states that evidence of a person's bad character includes evidence that shows that

''he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person.''

As the hon. Member for Southwark, North and Bermondsey said, how wide can you get? That is the sort of phrase that could cover the conduct of so many people. Imagine trying a case in which the defendant was a man of previous good character, in the accepted sense of the word, with no previous convictions of any description. Under the clause, what would be the effect on the person's character if, for example, he had ever been given a caution? I think that the Minister must accept that, routinely, cautions are not regarded as convictions and that judges still give the ''good character'' direction notwithstanding the fact that the defendant has had a caution.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

May I append to that question the matter of conditional cautions, which are a new concept introduced by the Bill?

Humfrey Malins (Conservative, Woking)

As the hon. Gentleman says, conditional cautions are a further aspect of the matter.

What of a defendant who has never received a caution, but who has received a warning? Sometimes the judge will be aware of that, because a note is made of it on the antecedents. However, I suggest that 100 times out of 100 the judge will still give the good character direction, because there has been no conviction.

What about the defendant male who has had a civil injunction made against him, either in relation to matrimonial proceedings or in connection with other civil proceedings where his behaviour might be viewed with disapproval by a reasonable person? Is the fact that an injunction was made likely to go before the jury? If these matters go before the jury, will that be on the issue of propensity—an inclination to commit a crime; or will the issue be credibility—whether the defendant can be believed on this occasion?

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman is asking some interesting questions, and I shall wait for the Minister's response to them.

Would not the proposal to delete subsection (1)(b) but to retain clause 82 effectively overturn the judgment in R. v. Z, so that if there were serial allegations of rape, separately made against the same person, there would be no possibility of admitting those in evidence?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a fair point. I retreat to the position of, first, my unease about R. v. Z as a case and, secondly, the deficiencies in my drafting ability. What I want to communicate to the Government is that I am unhappy about paragraph (b). I do not know how to get it right except by excluding it, and the amendment has enabled me to get the debate under way and question the Minister.

Sylvia Hermon (UUP, North Down)

I hope that that hon. Gentleman does not retreat too far. In his opinion, would clause 81(1)(b) cover someone who played loud music during the night or enjoyed fox hunting? Could not those activities be viewed with the disapproval of a reasonable person?

Humfrey Malins (Conservative, Woking)

The hon. Lady makes the valid point that, strictly speaking, such conduct could well be argued to fall within paragraph (b). It is hopelessly wide, although as to whether any Crown barrister would really tell the court that he wanted to put before the jury an allegation that the gentleman in the dock enjoyed fox hunting, and that that brought his character into question—[Interruption.] I do not think that it would happen in practice. However, the point that the hon. Lady makes is very strong, because she has looked at the wording. We must do that, because the wording will be the law.

I have asked for clarification about cautions, warnings and injunctions. Currently, day after day, people are brought before the court to be bound over according to law. A bind-over is not a criminal conviction. For example, people who have been a bit noisy or raucous in the street—it happens a lot—are often brought before the court, not charged with any crime, and bound over civilly to keep the peace in the sum of, say, £150 for 12 months. That does not constitute a criminal record. Such a person can go through life ticking on forms ''no previous convictions'' and ''no criminal record''. The question of completing forms about previous good character is another area that might be developed at some stage.

We shall find ourselves with a series of questions about people who have had no criminal conviction of any nature, but who might have experienced one of the things that I have mentioned, and find themselves subject to evidence before the court that could fall under paragraph (b). The wording

''or is disposed to behave''

is outrageously wide. The clause continues:

''in a way that . . . might be viewed''

—how wide can one get?—

''with disapproval by a reasonable person.''

What on earth does that mean? Who is the reasonable person who is going to express disapproval? There is no standard definition of a reasonable person. I cannot think of a wider subsection. The Home Affairs Committee disapproved of the proposition that is before us. The Minister is not slow to jump to his feet and say that right is on his side, not least because the Home Affairs Committee backs the Government on a particular issue. We have watched him doing that, and we have nodded sagely.

I see in his place the hon. Member for Bradford, West (Mr. Singh), who is a respected member of that Committee. No doubt, since it was, I understand, a unanimous report, he takes the view that the Home Affairs Committee was right. I am sure that he is not alone on the Labour Benches in feeling great disquiet about the way in which the position is widened in that subsection. The Minister owes it to the Committee to say that he recognises the merit and the strength of the position of the Labour-dominated Home Affairs Committee on the matter. It is very unhappy about it.

Justice, one of the finest organisations in the field, takes a dim view. I quote briefly from its report:

''The proposed new regime governing evidence of bad character will include not only previous convictions and conduct which amounts to a criminal offence but also evidence that the defendant has behaved, or is disposed to behave, in a way that might be disapproved of by a reasonable person. This''—

says Justice, and I think that we should ponder its words carefully—

''stretches the meaning of 'bad character' beyond its natural limits and risks substantial prejudice to the defendant by the admission of lifestyle evidence which in reality has very little probative value.''

I rest on those words. They are well crafted and they summarise the problem before us very well indeed.

My amendments are intended to convey the message that the scales of justice should not tip too far in favour of the prosecution. We have for generations maintained in this country a system whereby the burden of proof is, and remains throughout in a criminal case, on the prosecution. The standard of proof is high, namely that there must be certainty about the defendant's guilt.

If there are many problems in our criminal justice system, they are at the other end of the spectrum. The focus of our debate is not the need to catch more criminals, but that is the end of the spectrum that we should be considering. Looking at this end of the spectrum and saying that we must cure the apparent mischief caused when the Crown court acquits defendants with previous convictions is not a sensible approach.

Broadly speaking, the current law is right, although it could and perhaps should be codified. It would be entirely wrong to widen it to give the Crown a much better chance of bringing before the jury evidence of the defendant's background, which, although unsavoury, might not justify a criminal conviction.

The wording of the clause is hopelessly wide and gives rise to so many different definitions and understandings that it is an utter mess. Paragraph (b) should be removed in its entirety.

Dominic Grieve (Conservative, Beaconsfield)

When I first learned that the Bill would contain a proposal to codify the issue of evidence of bad character, my reaction was that it would have considerable merit. I practise in the criminal courts, and I suppose that I took the view that simplification and greater clarity might save lawyers the hours that they spend, in some interesting cases, deciding whether to apply to admit evidence of bad character.

Although there are exceptions—the hon. Member for Stafford (Mr. Kidney) referred to a set of cases to which I shall return in a moment—it is worth repeating that evidence of bad character has tended to be admitted in two contexts. One is where an attack on the character of a prosecution witness is such that it removes the shield of the defendant. It is simple to ascertain when that has happened. It will no longer be a question of whether there is a disagreement of degree between the witness's evidence and the defendant's position—there will be an accusation of outright lying. In those circumstances, everyone is pretty well forewarned about what will happen, and there is predictability—in will go the evidence about the defendant's character, which will usually consist of his previous convictions.

Secondly, there are cases in which propensity and similar fact evidence can be established. The incidence of such cases is fairly restricted, and my hon. Friend the Member for Woking referred to the calling card case. In some sex cases, there is the defendant's modus operandi. There are therefore several illustrations that one can use, and lawyers do not usually have too much trouble with them.

As the hon. Member for Stafford said, there is, of course, a whole series of grey areas. Case by case, the courts have widened the scope of cross-examination into areas of greater uncertainty. That is not necessarily improper, although some cases have caused me slight unease. Such developments can be seen particularly where allegations of bad character are made against the defendant, but he has no formal convictions. Evidence can be adduced from people in the community where he lives who are prepared to testify to his very bad character.

That principle does not bother me. Indeed, I can see that it has force. Someone may have terrorised a housing estate for five years but escaped prosecution during his reign of terror. When he is finally prosecuted, the fact that everyone on that estate is willing to give evidence about the reign of terror, particularly if it is linked to the offence for which he is being tried, appears to have some relevance. If it has no link to the offence for which he is being tried, the relevance starts to seep away quite quickly. If it concerns his terrorising an estate as a 16-year-old tearaway, and he is being tried at the age of 40 for a fraud offence and has apparently lived a life of respectability in the intervening period, it probably has no relevance and should not be admitted.

David Kidney (Labour, Stafford)

Can the hon. Gentleman confirm that trial judges always make that test before deciding whether to admit the evidence?

Dominic Grieve (Conservative, Beaconsfield)

Yes. That brings me to the next question that the Committee needs to consider. The disadvantage of common law rules—I have my ''Archbold'' by my side—is that a few closely typed pages of case law, interpretation and suggestion are put forward for the delectation of lawyers late at night, as the defence try to make up their minds whether they can successfully resist their client's character being put in, or the prosecutor wonders whether he is justified in making an application to put it in; and the poor old

judge has to look at them when deciding how to resolve those issues.

The merit of common law rules is that they are constantly evolving. As the hon. Member for Stafford pointed out, the trend is for courts to widen areas of admissibility. Just as the area can widen in certain cases to cover the sort of bad character that includes not only previous convictions, so, when it suddenly becomes apparent that things may have been pushed too far, the Court of Appeal finds itself able to rein it all back in during a judgment the following week or the week after—another Court of Appeal decision and the matter is changed. It has always been thought to be one of the strengths of our common law system that it provides a great degree of flexibility; we have a powerful belief in the value of law that is incrementally developed.

The downside of what we are attempting to do is that the law may be codified in a way that is different from the current rules. Indeed, I have not the slightest doubt that that is exactly what we will do. Having done so, we shall have to live with the consequences. If it emerges that the manner of the codification is causing problems and unease, it will be much more difficult for the steer to be given to push things back in the right direction. Although judges may try to produce flexibility within the code, I suspect that it will prove to be much more difficult than without it.

That is not an argument against having a code. As I said at the outset, it will make it much easier for a lawyer to see, at least initially, how matters stand. The code that we are about to introduce appears to provide for an enormously wide number of circumstances in which bad character can be admitted—albeit with a potential for judicial restriction. That turns on its head the previous concept, which was that bad character was not usually admitted and did not arise except in certain circumstances. That is an enormously profound change, and we must ensure that it is done correctly.

Sylvia Hermon (UUP, North Down)

May I draw to the hon. Gentleman's attention a paragraph from a letter that I received from the Minister in response to what I said on Second Reading? It was a very good letter, because it opened my eyes to what the clause is about.

''The starting point for our proposals is that juries and magistrates should be entitled to hear the widest range of evidence that will help them to reach a fair verdict and that relevant evidence should only be excluded for good reason.''

The starting point is the widest range; instead of starting from a narrow range and going out, they are doing the reverse.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Lady. I might have seen that letter—it rings bells in my mind, so it might have been circulated elsewhere. Certainly the wording struck me immediately. That is, indeed, the intention. I hope that the Minister will take the opportunity of the debate to explain the rationale behind that decision. I understand it to be the Government's view that that basic principle will be conducive to a better system of justice. I have serious doubts about that. I cannot see why it should be so,

because either there is evidence that someone did something or there is not.

The evidence that someone did or did not do something rarely has anything to do with the evidence of his previous bad character. There might be circumstances—the obvious example being those in which there is a major dispute about the credibility of a prosecution witness and it is helpful to know about the defendant's propensity to tell the truth—in which previous convictions give a guide. One of the great ironies is that when someone's bad character is given in evidence, the only relevant issue is whether he has been believed or disbelieved in the past, whereas what happens is that everything is held against him, including issues that might not have relevance to his truthfulness.

The difficulty is that it is apparent from that letter that the Government believe that past history is a powerful probative indicator of a capacity to commit an offence, and that that can properly be taken into account in deciding whether the offence for which the charge has been brought has been committed. We shall discuss that in greater detail in relation to later clauses. However, as a principle it horrifies me. It does not bear any rational scrutiny. It is one thing to say that there might be cases in which one can show similar fact. To say that, in a case in which someone is accused of a burglary in which the evidence against him is very poor, one can get round that by citing the 45 previous ones that he committed, is a logical fallacy. It will lead to very serious injustice if, as a result of what we are doing here, it is allowed to become the norm.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I left that issue because I thought that it would come up later, but the hon. Gentleman has raised it now. It is another huge question that affects the whole criminal justice system. The criminal justice system is geared to catching people who are accused of having done something wrong, convicting them if they have done it and then punishing them with a view—that is part of the objective of the system—to rehabilitation. This system is geared to reducing the belief in rehabilitation, because it presumes that the person who has been naughty before will be less capable of rehabilitation. That is a second reason why it is fundamentally wrong in the interests of justice. It is another presumption against people going straight when they might have gone wrong in the past.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the hon. Gentleman.

I should now like to consider clause 81. I apologise to the Committee if I have widened the scope of the debate, but all the clauses are so closely interlinked that it is difficult to disentangle them. One must look at the basic principles before one can start an examination of the clauses. The first thing that strikes me is that clause 81 is enormously widely drawn. Amendment No. 362, which suggests that we should leave out subsection (1)(a), was designed to illustrate that point. If it were omitted, it would make no difference, because subsection (1)(b) covers everything. It covers previous convictions, previous

acquittals, allegations that, as an eight-year-old, an accused misbehaved and was told off by his parents and that he was used to telling fibs. It covers everything, subject to judicial discretion. Its basic principle is that, unless someone decides that it should be left out, everything can go in. If we are to have paragraph (b), we do not need paragraph (a). I hope that that highlights the immensity of the scope of the proposed change.

On top of that, as my hon. Friend the Member for Woking has said,

''shows or tends to show''

is enormously wide. The words ''tends to show'' must be linked to the words in subsection (b), so that the legislation would read

''tends to show . . . that it might be viewed''.

That is the high point of the expansion of the doctrine—there is evidence that tends to show that someone has behaved or is disposed to behave in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person. That is all that is needed to get over the threshold of the principle of the admissibility of such evidence. That is going much too far.

I accept that some of the attempts to change the clause that we have made through amendments might not be ideal. However, all that we can do is to offer ideas to the Minister. If he thinks that there is some merit in the points that we are making about the scope of the clause, perhaps his officials can work on them.

David Kidney (Labour, Stafford)

Before the hon. Gentleman finishes, will he acknowledge that this is the wording of the Law Commission's draft Bill, and that it applies to all witnesses, not just to defendants?

Dominic Grieve (Conservative, Beaconsfield)

I accept that entirely. Even applied to other witnesses, I find it a rather widely drawn principle—it illustrates the difficulty of codification and of drawing up codification on such a complex issue. That might be a powerful argument for leaving well alone. I am not persuaded. I am willing to go through this exercise in Committee and on Report to see whether we can arrive at something that codifies in a way that provides protection. If we do not succeed in getting the Government to reconsider the issue, we shall make some proposals on Report to rewrite the clauses so as to provide for codification in a way that will protect the common-law position. I have not offered them to the Committee today because we need to analyse the issues—

Humfrey Malins (Conservative, Woking)

Does my hon. Friend accept that, arising from what the hon. Member for Stafford said regarding the scope of the clause, there will be a sea change in jury trials from now on? So much time will be spent on such issues that the question of the evidence that the defendant has committed the crime—always the principal question in the past—could become secondary. We are in danger of having our eyes taken off the ball. What should concern us is the real evidence.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely. That was one of the things that concerned me when I read the provision. Although it will produce clarity in the rules, it will lead

to many more applications to adduce bad character of various kinds than before. Doubtless over time that will sort itself out, as judges' decisions percolate down, but rather as the Human Rights Act 1998 did, the measure has the capacity to allow an initial free-for-all, which will be time-consuming and costly and will indeed take people's eye off the ball—which is the issue of whether there is evidence to show that the person did or did not commit the offence.

I have an anxiety that that is where the provision will lead. At present, evidence of bad character tends to be introduced rather reluctantly, with those concerned reasoning, ''In view of what has happened, we should make an application.'' Now, cases will start with the prosecution asking, ''What evidence of bad character might we be able to have admitted?'' That will be one of the first questions that prosecuting counsel will discuss with the solicitor from the Crown Prosecution Service in preparing a case. In the past, in my experience, that has simply never happened. It will be a big change.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I only want to flag something up, since we are in a way listing objections now, which is perfectly reasonable; does the hon. Gentleman accept the further objection that has been raised in some submissions—that defendants, knowing of the effect that he describes, will be much more likely to elect for jury trial, where there is at least a separation of the debate and the evidence before the judge? In a lower court there is no such separation and the same person hears the debate about the evidence and the debate about the facts.

Secondly, to deal with the point made by the hon. Member for Stafford, the provision works against the Government's objective of getting witnesses to give evidence. The chance of witnesses, many of whom come from criminal backgrounds, being more willing to give evidence will be hugely reduced if they know that their life history will probably be exposed in court. That flies in the face of Government objectives.

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman's point about people electing trial at the Crown court because of the rules. Generally speaking—perhaps my hon. Friend the Member for Woking will correct me—a magistrate may have to make a ruling and consider bad character issues, but he will not usually be aware of bad character when he is trying a case, unless the issue arises. I can see that that issue will be relevant.

Hilary Benn (Labour, Leeds Central)

I hear the arguments that the hon. Gentleman is making against the change, but does he accept that the provisions would provide much better protection for witnesses against having their character dragged through the mud when they give evidence than at present?

Dominic Grieve (Conservative, Beaconsfield)

Yes, I can see that in some circumstances they would. The obvious example would be the case of a man of good character standing trial. It might be felt that there could be a free-for-all in examining the bad character of prosecution witnesses. The Bill would provide greater protection in that case. To that extent I apologise; perhaps I am missing points. I focused on the point that the hon. Member for Southwark, North and

Bermondsey made about Crown court trial, which is very pertinent. However, the Minister is right that the Bill gives greater protection against attacks on witnesses' character. We shall, indeed, need to think about that to decide whether justice will be done. On the whole I am prepared to consider it.

Amendment No. 434 is not a very happy amendment. I think that it was suggested by an outside organisation. The point being made is that evidence of bad character might be more than just evidence; it might be questions tending to make reference to, or asked with a view to eliciting, such evidence, or behaviour in asking questions that had a similar tendency. I think that that problem can be dealt with elsewhere.

There are ways of getting information to juries other than by eliciting answers from witnesses. Although it is frowned on, one has seen enough of such tactics in one's time to know that questions may be asked, or comments made, that may give an impression of a background of bad character. People get away with doing that. That is what the amendment is intended to highlight.

Having considered what are, to my mind, the principles of the matter, and relating those to clause 81, I conclude that we are dealing with a classic piece of modern drafting. I have seen the phenomenon before on other Bills. One starts with a statement that is incredibly wide—as happened with the Proceeds of Crime Act 2002—and then one begins to add restriction clauses. That is a dangerous way to proceed. There may be no other way to proceed, but each clause should be studied separately.

Clause 81, taken alone as a bald statement of bad character, is drawn much wider than anything that I could conceivably think of as pertaining to the sorts of bad character that are currently adduced in the courts. It is for that reason that I am so troubled by it. I hope that the amendments may stimulate some sensible discussion.

Paul Stinchcombe (Labour, Wellingborough)

I accept some parts of the hon. Gentleman's argument, but does he agree that clause 81 defines the nature of the evidence of bad character that might be admitted and clause 84 defines the circumstances in which it might be admitted, and that the wider clause 81 is drawn the narrower clause 84 should be drawn?

Dominic Grieve (Conservative, Beaconsfield)

I accept that there is an interrelationship between the clauses, which was the reason for my preliminary comments. The trouble is that legislation establishes principles and sends out signals. We know what signal the Government are trying to send with the Bill. It is that, generally speaking, evidence of bad character and previous convictions should be admitted unless restrictions are applied. That is a principle with which I do not agree. I approach the matter, philosophically, from a completely different angle. My attitude is that in criminal trials in this country we have been well served by the basic principle that previous bad character is irrelevant and should be excluded. Indeed, steps

should be taken at every stage of the proceedings to try to ensure that such information does not come before the jury unless certain exceptions apply. We are turning that on its head and clause 81 is a good place to begin discussing that.

James Clappison (Conservative, Hertsmere)

I was a member of the Home Affairs Committee that produced the report and I share some of the concerns that it expressed. I must go slightly wide to frame my comments on the clause and amendments, but I should say that I believe that there is a case for using previous convictions more widely than at present. There are circumstances in which juries need to hear evidence of previous convictions. I believe that that puts them in the picture. However, if we are to go through the exercise of extending the circumstances in which evidence of previous bad character or convictions is admitted, we should very carefully scrutinise the way that we go about it.

The conclusions of the Home Affairs Committee reflected the evidence that it heard. We heard the views of eminent legal authorities. The general concern that was expressed was that evidence of character might tend to deflect from the central question of whether the defendant had actually committed the offence. The chairman of the Criminal Bar Association put it very well. He said:

''We are very concerned it is going to be a rule where we will have convictions going in on a much wider basis, which we feel could cause unfair trial and, indeed, miscarriages of justice, because the fact-finder will be deflected from the real issue in the case''.

That is the risk to which the Committee must address itself in examining the amendments and clauses.

I agree with the comments of my hon. Friends about clause 81. It goes very wide. However, as the hon. Member for Wellingborough rightly said, it is subject to clause 84 and for character to be adduced the admissibility test under that clause would have to be passed. However, the definition is very wide, and I am concerned that the police and prosecuting authorities will use it in considering the previous character of the defendant in order to see whether they can make it fit the test of clause 84. How far might they look? They could take in a wide variety of circumstances.

Sylvia Hermon (UUP, North Down)

Could the hon. Gentleman comment on what the Home Affairs Committee thought about spent convictions under the Rehabilitation of Offenders Act 1974? How do spent convictions stand up in the light of clause 81?

James Clappison (Conservative, Hertsmere)

We shall come to that. The hon. Lady is right to draw attention to what the Home Affairs Committee has said. We must consider what we are saying about rehabilitation. The clause would cover not just rehabilitated offences but anything at all. We should be concerned about whether the police and the prosecuting authorities are to spend their time investigating the evidence and the facts of offences, or whether they are going to trawl through the previous character of defendants in order to see what they can come up with that will come within the ambit of clause 84. That is part of the wider concern that the Home

Affairs Committee expressed about these clauses. The time and effort of the prosecuting authorities and the police, and later the attention of the jury, might be deflected from the evidence relating to the crime if they are looking too much at evidence of character, previous convictions and the widely drawn definition of character.

Paul Stinchcombe (Labour, Wellingborough)

I, too, think that the clause is extremely widely drawn. I am sure that, in the view of my children, I have behaved in a way that would fall within subsection (1)(b). However, I do not believe that the attack should be made on that clause so much as on clause 84. Clause 81 defines bad character in a way that is broadly in conformity with existing common law—certainly as recommended by the Law Commission. It properly reflects the kind of evidence that might, in limited circumstances, be proper to admit in a criminal trial. The question is, what are those proper limited circumstances? I should have thought that they obtained when the evidence was both relevant and probative to the issues at stake in the trial. If that is covered at all, it will be in clause 84. I await with great interest the debate on that clause, to see whether the restrictions are narrow enough to limit the potential harm caused by the breadth of clause 81. If they are, I have no problem with the clause, but if they do not define the circumstances adequately narrowly, it could do damage.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The debate has flagged up the importance of this part of the Bill, and the concerns that many of us have about the fact that, by pursuing this course, we are turning round the presumptions. We are starting at a point that is contrary to the good tradition of the criminal law in England and Wales and Northern Ireland. That is the wrong way to go.

If we retain a wide definition in clause 81, we shall be in difficulty. I shall give two examples to illustrate why it should be more tightly drawn, rather than leaving it—as the hon. Member for Wellingborough suggests—to the gateways provided in clause 84. Clause 84(1)(c) would allow the admissibility of bad character, as defined in the clause that some of us seek to narrow, if it is important explanatory evidence.

According to clause 85, evidence is considered to be ''Important explanatory evidence'' if

''(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.''

What might be important in explaining somebody's life pattern and past behaviour might easily be admitted under a combination of clauses 81, 84 and 85, as it might be thought that it would be difficult for the jury properly to understand other evidence without it. Somebody could argue that a jury might find it difficult to understand what happened without knowing what sort of person the defendant is. That could allow all sorts of improbable evidence to be admitted.

Let me give another example. Take clauses 81, 84 and 87. Clause 84(1)(e), which deals with the

admissibility of evidence of a defendant's bad character, states that

''it is relevant to an important matter in issue between the defendant and the prosecution''

Clause 87(1) states that

''matters in issue between the defendant and the prosecution include—

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged''

We have heard from the hon. Member for Beaconsfield, from me and from others that ''propensity'' is not sufficient. By definition, somebody with previous convictions or from a particular background or whose parents have a criminal record would have a greater propensity to commit certain offences. That could easily be argued. Doing that would open up the trail that takes us from clause 81 through 84 and 85. Suddenly we have evidence of behaviour that, according to clause 81(1)(b), might be

''viewed with disapproval by a reasonable person.''

The door has been opened. I understand how the drafting has been done. One tries to find an ''Oxford English Dictionary'' definition of bad character and then give the circumstances in which it is admissible. This is not an attempt to rewrite the English dictionary; it is an attempt to rewrite the preconditions for the admission of evidence under English law. We are not seeking to arrive at a general understanding of what constitutes bad character. We are not debating how we judge bad character; that is not the test. We should be seeking to define bad character for the purposes of the admissibility of evidence in criminal law. We should not go further than that.

Amendments Nos. 469 and 363 go to the heart of the debate. We must remove from the definition of previous lifestyle or behaviour things that fall short of convictions; there is all the difference in the world between convictions and other activities. Above all, there is no need at all for the hugely broad definition in clause 81(1)(b). I will ask leave to withdraw—

Eric Illsley (Labour, Barnsley Central)

Order. It might be appropriate before the hon. Gentleman withdraws any amendment to allow the Minister to respond.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree, but the Minister—

Eric Illsley (Labour, Barnsley Central)

Order. I understand that the hon. Gentleman wants to withdraw one amendment and vote on another, but we can organise Divisions very easily.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I will seek to press amendment No. 469 to a vote. I also hope that we can vote on amendment No. 363.

Eric Illsley (Labour, Barnsley Central)

Before I call the Minister, let me say that it is unsatisfactory that hon. Members are moving amendments and summing up the debates before the Minister has had a chance to respond. We really should go back to the system whereby the mover moves the amendment, the Minister responds and the amendment is withdrawn or there is a vote.

Hilary Benn (Labour, Leeds Central)

Thank you, Mr. Illsley. Your comments highlight my endless willingness to listen to hon. Members' arguments before speaking.

We have had an important debate on an extremely important part of the Bill, and it is right that we have given it careful consideration. I am genuinely grateful to all those who have spoken, because, as they said, this part of the Bill fundamentally changes the system. That is precisely the Government's intention, and it is important to make that clear at the beginning.

The hon. Member for Woking said there were more important things that we should be doing, such as catching criminals. I simply observe that there is not a competition between the current proposals and the pursuit of criminals. If it is right to make the present change, we should do so. At the same time, we all subscribe to his view that the more criminals we can catch, the better. This is not an either/or issue.

The hon. Gentleman argued that there was no great cry for a change, but that is not the Law Commission's view. It said:

''The present law suffers from a number of defects which we identify in a later chapter of this report. In summary, however, they constitute a haphazard mixture of statute and common law rules which produce inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the fact-finders whilst often exposing witnesses to gratuitous and humiliating exposure of long forgotten misconduct.''

Humfrey Malins (Conservative, Woking)

Does the Law Commission entirely agree with the extent of the Government's proposals?

Hilary Benn (Labour, Leeds Central)

I will come to that. The Government have taken the Law Commission's recommendations as a foundation, but we propose to go further.

In a pretty telling condemnation of the system, Sir Robin Auld said:

''It has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty . . . it is not an honest system in that it does not do what it is claimed to do.''

The case for change has been well made, and hon. Members who have spoken accept the argument for changing the current position.

Sylvia Hermon (UUP, North Down)

The quotations from Sir Robin Auld and the Law Commission describe their judgment that the present rules are unfair, and that is what should be addressed. They do not recommend that the present rules should be extended, so the Minister's quotations do not support the Government's case.

Hilary Benn (Labour, Leeds Central)

I do not accept that argument. I used those quotations in response to the hon. Member for Woking, who said that there was no great cry to change the system. However, that is not the view of the Law Commission or of Sir Robin Auld. The hon. Member for Beaconsfield accepted that there was an argument for codifying the present complex and messy situation. There is therefore a case for making a change, although I entirely accept that other hon. Members do not like the Government's proposals. However, the case for change is extremely well made.

David Cameron (Conservative, Witney)

The Minister has talked about a cry for change and quoted the Law Commission in saying that it would go as far as the Government. Could we have some evidence of that? The Government propose

to make a big change. A number of people who follow the issue closely say that in many cases we shall poison the well of fair trials. Could we have some facts or some figures about, for instance, conviction rates falling, or jurisdictions that do things differently and have better outcomes? Can we have some scientific evidence, rather than some words from the Law Commission, which does not agree actually agree with what the Government propose?

Hilary Benn (Labour, Leeds Central)

If the hon. Gentleman will bear with me, I shall try respond to those points in advancing my argument. In the Law Commission report No. 273 on evidence about character and criminal proceedings, the second most favoured option, in response to the consultation that was undertaken, was for there to be evidence about character in all circumstances, in every case. There was a substantial body of opinion—not a majority—that argued that the law should in fact be changed even more than the Government propose.

Dominic Grieve (Conservative, Beaconsfield)

That may be the case—

Hilary Benn (Labour, Leeds Central)

It is.

Dominic Grieve (Conservative, Beaconsfield)

Yes, but that does not mean that it is right. It is noteworthy that the Law Commission actually said:

''we believe that the wisest course is to maintain a general rule against the disclosure of the defendant's criminal record.''

That is precisely what the clause and subsequent clauses will turn on its head. The presumption of admissibility has been raised, then exceptions have been provided, which is an important philosophical difference.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman is absolutely right, and that is precisely what the Government propose to do.

On the wording of the clause, as has been pointed out, the definition is that which the Law Commission proposed in its report No. 273. There is a minor difference, in that evidence to do with the facts of the case, its investigation or prosecution, is excluded from the definition under the Government's proposals. However, there is no substantial difference, as the Law Commission recommended that that evidence should be admissible without leave in any event. The only slight difference in wording reflects a structural difference between the Bill and the Law Commission's drafting.

James Clappison (Conservative, Hertsmere)

Will the Minister bear in mind the need to temper what comes from such eminent authorities with the views of practitioners? Will he cast his mind back to the experiences that led to a previous Criminal Justice Act, the 1991 Act, introduced by a previous Conservative Government, during which similar eminent legal authority recommended restricting the taking into account of previous convictions for the purposes of sentencing? That was an absolute disaster and had to be reversed by the last Conservative Government.

Hilary Benn (Labour, Leeds Central)

I listened with interest to the hon. Gentleman's confession on behalf of his party in relation to the previously proposed change in the law. I read with interest the list of people and organisations

that commented on the consultation paper listed on pages 244–247 of the Law Commission's report. They all seem to work at the sharp end. The hon. Member for Woking made a point in relation to that matter.

Ian Lucas (Labour, Wrexham)

May I pick up on a point that the hon. Member for Beaconsfield made? He said that there was a presumption that bad character would be admissible because of the clause. That goes to the heart of the way in which the Opposition misrepresent the position in the clause. Clause 84 says:

''In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—''

and there follows a number of circumstances. It is absolutely untrue to say that there is a presumption that evidence is admissible in all criminal cases.

Hilary Benn (Labour, Leeds Central)

My hon. Friend is right to draw the Committee's attention to the interrelationship between the definition in the clause and the circumstances in which such evidence is admissible, a point that my hon. Friend the Member for Wellingborough made. It is undoubtedly true that the Government's proposals turn the test that the Law Commission recommended, because the Government think that that is the right way to proceed.

I do not want to anticipate your decision, Mr. Illsley, on whether we shall need a clause stand part debate, but it seems to me that the debate on the amendment has ranged widely—and properly so—round the nature of the clause. The scope of the definition is far-reaching, in order to ensure than any evidence that is treated as bad character evidence at common law is also covered by the statutory regime. If that were not the case, the abolition of the common-law rules governing bad character evidence—we shall come to those on clause 82—would mean that evidence not covered by the statutory definition would fall outside the scheme and be generally admissible. The definition is intended to be comprehensive about the sort of evidence to which particular considerations of admissibility should apply.

The definition encompasses in the first instance evidence that shows that a person has committed an offence, such as previous conviction, but also evidence that tends to show that a person has committed an offence. That is to cover evidence that relates to charges for which the defendant is currently being tried—for example, where a number of related charges are tried together and the evidence on one charge is relevant to another. It would also cover evidence relating to charges for which the defendant was acquitted. The evidence of witnesses to previous charges may well be relevant to the current charge, as the House of Lords acknowledged in the case of Z.

Humfrey Malins (Conservative, Woking)

Is a man facing a charge that has not been heard entitled to call himself a man of good character with no previous convictions?

Hilary Benn (Labour, Leeds Central)

It would depend on the circumstances.

Vera Baird (Labour, Redcar)

Surely the House of Lords in the case of Z made it perfectly plain that if that individual was of good character, the fact that he had

previously been acquitted of three rapes would none the less have been put in evidence.

Humfrey Malins (Conservative, Woking)

It is not a question of being previously being acquitted of anything. It is a person who is merely facing charges that are not yet tried. If he is before the court but faces other charges elsewhere, that person is still a person of good character with no previous convictions. Is that contrary to what the Minister is saying?

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman is right that the evidence could go in.

Ian Lucas (Labour, Wrexham)

My understanding of criminal trials is that there could never be an assertion by the defence that an individual was of good character if he had previous convictions. If so, it would be likely that evidence of those convictions would be put before the court.

Hilary Benn (Labour, Leeds Central)

My hon. Friend is right in relation to previous convictions, but I understood the hon. Member for Woking to be raising a different point, the answer to which is yes, such a person would still be a person of good character, but in the circumstances the evidence could well go in.

Dominic Grieve (Conservative, Beaconsfield)

This is one of the key issues. We shall return to the matter on clause 84, but as we have already raised the question we might as well deal with it now. If it is possible for a person to make the assertion that he is a person of good character with no convictions yet it is possible for evidence for evidence of previous acquittals to be put in, it makes a mockery of the system. Indeed, under clause 84 it could be admitted in rebuttal of the good character without the leave of the court. The Minister will be embarking on a most tormented procedure once he goes down that road.

Hilary Benn (Labour, Leeds Central)

I do not agree with the hon. Gentleman that it is a tormented procedure. No doubt we shall return to the subject on clause 84. It is a procedure that, for the reasons that I advanced earlier, will try and clarify the circumstances in which such evidence of the defendant's bad character is admissible.

Vera Baird (Labour, Redcar)

The hon. Gentlemen are completely at variance with the House of Lords. A person who has been tried and acquitted ought, in theory, to be in a stronger position than one who has never been tried and acquitted to present himself as having a good character. However, Z makes it clear that even though a person has been acquitted, what happened in the acquitted offences might still be considered if it is relevant. He might say that he is of good character, but the House of Lords would say that it does not matter; what happened previously can still be used. There is nothing new in this.

Hilary Benn (Labour, Leeds Central)

I am grateful for that intervention.

James Clappison (Conservative, Hertsmere)

On a point of order, Mr. Illsley. Is there any facility whereby members of the Committee who are non-lawyers or, as in my case, very rusty lawyers, can have the benefit of seeing the learned opinions in cases such as Z—and X and Y for that matter—so that we can understand such important and distinguished academic discourses?

Eric Illsley (Labour, Barnsley Central)

I cannot help with that. I am afraid that the hon. Gentleman will have to seek the advice of the Library or some other organisation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the Minister accept that some of us find both examples equally unacceptable? It is unacceptable that evidence against somebody who has been tried but whose case has not been concluded should be put in as evidence of bad character. In addition, some of us are not comfortable about the House of Lords decision. We would strongly argue that people who have been acquitted should be entitled to say that they are still of good character. If they have no previous convictions, they must be presumed to be of good character. Neither the House of Lords ruling nor the Minister's argument is persuasive.

Hilary Benn (Labour, Leeds Central)

I hear the hon. Gentleman. He is not persuaded, but the Government take a different view. The contrary argument might be to consider somebody who has been tried and acquitted twice for rape and is tried for rape a third time. Is that evidence of bad character? It goes to the heart of the issue. The hon. Gentleman might say that it does not indicate bad character, because the person was acquitted and is therefore entitled to claim that he is of good character. Does common sense suggest, to put it in a very un-lawyerly way, that that information may be relevant, subject to the tests and protections of clause 84? Should it be excluded in all circumstances? If that is the hon. Gentleman's argument, I do not agree.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

As the Minister knows, it is a central issue. The problem with his position is that it works on the basis that a trial that concludes in an acquittal does not have the same decisiveness as a trial that concludes in a conviction: if one has a conviction, one becomes of bad character, but if one has an acquittal, or one is not convicted but other proceedings are under way, that does not hold one in good stead. That is not a fair justice system. The system is supposed to determine guilt and innocence. If somebody is determined to be not guilty, that has always meant innocent—not partly, possibly or conditionally innocent.

Hilary Benn (Labour, Leeds Central)

Again, I hear the argument, but I am not persuaded. To take the example that I have given, how many times would somebody have to be charged and acquitted of rape for the hon. Gentleman to start to feel uneasy that there was a pattern of conduct that an ordinary lay person might consider to be relevant enough to take it into account and give it weight—subject to the important safeguard of clause 84 that its probative value outweighs its prejudicial effect? A lot of jurors would find it hard to understand why information that they would regard as helpful in reaching a judgment is prevented from being put before them. That is one of the arguments for making the fundamental change.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the argument, but that changes jury trial from being trial on the allegation and on the facts to trial on the basis of one's history, which is unreasonable and unjustified. Of course, the jury is always likely to be influenced by knowledge of previous allegations, proved or unproved, and that is

the reason why it has previously been thought improper to include them.

Hilary Benn (Labour, Leeds Central)

Of course, in the case of Z, the relevant issue was not the previous acquittal but the evidence of complainants in earlier cases. Such evidence is currently admissible under the Z judgment. I understand that the hon. Member for Woking expressed reservations about that, but if, over time, a series of complainants have made complaints against an individual, that evidence is admissible, notwithstanding the hon. Gentleman's argument that the defendant was acquitted in the previous cases. Common sense suggests that a jury in a subsequent rape trial should have the opportunity to be aware of that information and to weigh it in the balance with all the evidence relating to the case.

Is the hon. Gentleman saying that the jury should not be able to use their judgment and that we should not trust them to weigh all the evidence in the balance? That would mean that the court would tell the jury that it must have regard to all the evidence of the case, although evidence that was adduced from complainants in earlier trials would not be included. If he is saying that the jury should not have access to such information, that is his opinion and I respect it, but I do not agree with it.

Humfrey Malins (Conservative, Woking)

Leaving aside the issue of previous acquittals, is the Minister saying that, even if the defendant in the dock has no previous convictions and no previous court appearances and holds himself out as a man of good character, the fact that he has been charged with another offence that has not yet come to court could be put before the jury under clause 84(1)(g) to correct a false impression? If that information were put before a jury, would propensity or credibility be in question?

Hilary Benn (Labour, Leeds Central)

That brings me to my next point, but I hope that I will also be able to answer the hon. Gentleman's question.

I was about to say that the definition also extends, in subsection (1)(b), to behaviour that is not illegal but, as the Law Commission recommended, might be viewed with disapproval by a reasonable person. There may well be evidence of conduct or disposition that is relevant to the case: for example, in an allegation of racially motivated assault, evidence that a person had previously acted in a racist manner. That was one of the examples cited in the Law Commission report in support of the wording that it drafted. Such information might also be evidence of disposition, rather than conduct. However, as the Law Commission pointed out, a rule that distinguished between the two would fail to deal, for example, with evidence that a man had admitted to a sexual interest in children while denying that he had ever acted on that interest, yet that evidence might be relevant in certain cases.

David Kidney (Labour, Stafford)

The hon. Member for Woking is still waiting for an answer to his question about what would happen if someone was charged. Could that person say that he was of good character? I agree with the hon. Member for Hertsmere (Mr. Clappison) that if we had some basic information, we could answer

such questions. The Criminal Evidence Act 1898, of which Opposition Members have spoken with approval, states that the evidence that can be admitted once the shield is lost includes being charged with an offence, whether or not it is the same offence as the one with which the person is currently charged. That is the law already and has been for more than 100 years.

Hilary Benn (Labour, Leeds Central)

That is most helpful. I am sure that this debate will send lots of hon. Members off to the Library to consider the cases to which we have referred.

On the next point that the hon. Member for Woking raised, at present relevant evidence of that nature would be admissible if it meant that one of the common-law statutory exceptions to the general rule prohibited the use of evidence of previous misconduct or disposition. In the light of the Bill's proposed abolition of all the common-law rules on bad character evidence, we must ensure that the evidence comes within the new statutory scheme or it would be generally admissible.

In answer to the hon. Gentleman's specific question about whether cautions, conditional cautions, restraining orders and being bound over could be included, the answer is yes—if they met the other tests. I am grateful to him for raising that point.

Subsection (2) makes it clear that the provisions do not apply to evidence that has to do with the alleged facts of the offence with which the defendant is charged, or with the prosecution or investigation of that offence. That ensures that the evidence of the prosecution and the defence on the facts of the offence is not subject to any rules of admissibility, nor envisaged evidence that is currently admissible as part of the res gestae—matters that immediately relate to the facts of the offence.

Sylvia Hermon (UUP, North Down)

Will the Minister respond to my question about spent convictions under the Rehabilitation of Offenders Act 1974? Are those convictions spent or not?

Hilary Benn (Labour, Leeds Central)

There may be circumstances in which those provisions could be included. Again, they would be subject to the tests that we shall debate on clause 84.

Many amendments have been tabled, although not all are likely to be insisted on. The purpose of all the amendments is to restrict the admissibility of bad character evidence in certain ways. As has already been acknowledged, they fail to achieve that purpose. I recognise that they are, in part, probing amendments, because clause 81 must be read in conjunction with clause 82, which abolishes all the common-law rules that relate to bad character evidence. That means that all evidence of previous misconduct, or propensity other than that covered by the definition, will be generally admissible, subject to the requirement for bare relevance.

The Law Commission pointed out that it is necessary for the definition to go wider than previous convictions, as a range of other potentially prejudicial character evidence might be relevant to a case, but, in light of its potential effect, that character evidence

should fall within the rules for admissibility rather than be generally admissible. We agree. The amendments would not only offer defendants inadequate safeguards but would be regrettable for witnesses. They would enable attacks to be made on non-defendants, based on the excluded evidence of bad character, outside the terms of clause 83. That would significantly restrict the new protection that the clause would extend to witnesses.

Amendments Nos. 361 to 363 would exclude all evidence other than that of previous convictions. As my hon. Friend the Member for Wellingborough said, that would be far more restrictive than the current law.

Dominic Grieve (Conservative, Beaconsfield)

That cannot be right in respect of amendment No. 362, as that amendment does the reverse. It was designed to remove subsection (1)(a), which is not needed because subsection (1)(b) is so widely drafted that it covers committing or tending to commit an offence, and other matters besides.

Hilary Benn (Labour, Leeds Central)

I acknowledge the hon. Gentleman's point about amendment No. 362. The reason that the Government do not accept those amendments is that they would be much more restrictive than the current law. We have heard the example of the case of Z. There is also the case of DPP v. P, which included evidence on related charges for which the defendant was concurrently being tried, which might be properly cross-admissible if, for example, there were a number of separate but related allegations of sexual assault, as there were in that case.

Amendment No. 469 would require evidence of previous conviction to be one of similar facts to the offence charged. However, that would be unnecessarily restrictive as it would over-emphasise the issue of similarity in the probative value of the evidence. Although similarity may be very important in some circumstances—for example, where the previous conduct shows a signature such as to identify the defendant as the perpetrator—that is not always the case. For example, when a person is found in possession of a significant quantity of drugs, previous convictions for supply are relevant to a charge of possession with intent to supply, even if there is not a strong coincidence between the type of drugs or whether they were found in the defendant's home, or on his person or in his car.

The definition of bad character under clause 81 applies equally to defendants and non-defendants. Even if the reference to charge were modified, a requirement for similarity would clearly render inadmissible anything other than a narrow range of evidence relating to a defendant's credibility. How, in those circumstances, is the similarity to be judged?

Amendment No. 395 deals with evidence of disposition. That may well be highly relevant, and we consider in principle that it should be capable of being given. Indeed, the Law Commission stated in its 2001 report:

''we do not think it would be sensible to draw a distinction between evidence of conduct and evidence of disposition which has not (or cannot be shown to have) manifested itself in conduct. For example, a rule incorporating such a distinction would fail to require leave for evidence that a man had admitted a sexual interest in children, whilst denying ever having acted on that interest.''

I also gave the example of racist attitudes.

Amendments Nos. 467 and 468 would have a different effect. They would require the evidence ''clearly'' or ''conclusively'' to show that the commission of an offence or the conduct might be viewed with disapproval. That would potentially create a high threshold for admissibility. Where the defendant had been found guilty of a previous offence, arguably only the fact of conviction would meet the requirement proposed in the amendments. That would exclude evidence that showed, but not conclusively, that the defendant was guilty of offences, or provided details about the offences where the defendant had been found guilty. For example, witness statements from the trials relating to the previous offences might not be admissible as they do not, in themselves, conclusively show that a defendant had been convicted.

Moreover, evidence that related to offences for which the defendant had been acquitted would certainly be excluded, even though the common law has recently recognised that where the requirements of admissibility are otherwise met, the fact that the evidence relates to a charge for which the defendant was acquitted is not a bar to the evidence being given. That was an important development in the common law, which we seek to preserve.

The intention of amendment No. 434 is that not only should evidence of bad character need to meet the conditions of the Bill, but questions relating to such evidence should not be asked unless that evidence itself would be admissible. That would secure two things: questions could not be put about that inadmissible evidence; and if there was any doubt, the admissibility of evidence to which the questions related would need to be established before they could be put. However, we consider that both objectives are properly secured without the proposed reference.

The first suggests that without specific provision to disallow questions about inadmissible items of evidence, it would be perfectly proper for counsel to ask such questions, even where it is perfectly clear that the evidence is inadmissible. That simply is not right. The exclusionary rules of evidence apply both to examination in chief and to cross-examination. The question that seeks to raise inadmissible matters would therefore be improper. However, there will clearly be cases where the admissibility of an item of evidence is not cut and dried, and there is a proper debate to had about whether it should go in. That raises the second issue, which is how to control such questions before they are put, in case the evidence that they relate to is, in the event, ruled inadmissible.

The Bill, and the current procedures, already provide sufficient scope for ensuring that questions of admissibility are dealt with before the evidence is adduced or questions asked. For example, the prosecution provide a copy of their case to the defence in advance of the proceedings. That will alert the defendant to the fact that they intend to adduce evidence of bad character, including where they intend to ask questions of a witness to elicit it. The defendant

will then have an opportunity to apply to the court to have the evidence excluded.

Where that is not done in advance of the opening of the trial, it is common for counsel to alert the court to any potential questions of law, such as admissibility, that need to be decided before the issue comes before the court. That works well now, and there is no reason to expect that it would not do so in future. For cross-examination, a procedure has developed under the Criminal Evidence Act 1898 for a prosecution to seek a ruling from the court that the Act's provisions are engaged and on the extent to which the defendant's previous convictions can be revealed in consequence. There is no reason to believe that a similar practice will not develop under these provisions, ensuring that only questions dealing with matters that can properly be raised in cross-examination are put.

Vera Baird (Labour, Redcar)

I am not sure whether there is to be a clause stand part debate, so I mention this now. Can my hon. Friend assure me that nothing in the definition in subsection (1)(b), when applied to a victim or witness, will allow in the previous sexual history of a complainant in a rape trial so as to undermine the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999?

Hilary Benn (Labour, Leeds Central)

I shall reflect on the matter and respond to my hon. Friend.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We are in some difficulty, because we have gone to the new form of drafting, whereby the definition is at the beginning and the conditions come later. We are therefore debating things that would probably be better debated had we debated clause 84 first. However, the principles have been raised and we are clear about those. I understand the Minister's argument, but I am absolutely not persuaded. That is the fundamental divide between us. There are those who understand the need for codification—I subscribe to that and have argued for it—and want to replace common law that is obscure with something that sets out the rules clearly. The ''Archbold'' example given by the hon. Member for Beaconsfield is right: when people have to piece together statute law, common law and case law, as the hon. Member for Hertsmere tellingly said, it is difficult for them to understand where we are at. I sign up to having rules that are clear and in statute. However, they must preserve the presumption of innocence.

On that basis, I shall press the Committee to a vote on amendment No. 469. I understand that there is a wish that amendment No. 363 also be the subject of a Division. Those are the amendments that concern the two fundamental issues in the clause. I understand the arguments that the Minister gave in response to amendments Nos. 467 and 468. They would set a high threshold, but until we are satisfied that the other protections are in place, we shall seek to make the threshold so high. Whether or not we win the argument on this clause, we cannot be comfortable about signing up to the removal of common-law protection and its replacement by statutory alternatives if those alternatives are not sufficient.

That will determine how we vote in the debates to come.

I beg to ask leave to withdraw amendment No. 467.

Amendment, by leave, withdrawn.

Amendment proposed, No. 469, in

clause 81, page 50, line 11, leave out 'committed an offence' and insert

'been convicted of a previous offence of similar facts as the one with which he is charged'.—[Simon Hughes.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 12.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 396, in

clause 81, page 50, line 19, at end insert

'or

(c) relates to spent convictions.'.

The amendment deals with the relevance of spent convictions under the Rehabilitation of Offenders Act 1974, and I simply ask the Minister to enlighten us on the issue. We all know that the directions that judges give on spent convictions can vary. In the civilian world, as opposed to the criminal world, spent convictions cannot be referred to—the conviction is truly spent. There are, however, circumstances in which the courts may refer to a spent conviction, although they are pretty reluctant to do so unless they have to, and there is a general presumption that such convictions should be left alone.

Sometimes, a judge will give a full character direction in relation to spent convictions, so I ask the Minister to tell us about their relevance. The hon. Member for North Down also referred to them a moment ago.

Hilary Benn (Labour, Leeds Central)

The amendment would exclude spent convictions, which were the subject of a question from the hon. Member for North Down, from the scope of the scheme. That would put such convictions on a par with evidence to do with the alleged facts of the offence, or of misconduct in connection with its investigation or prosecution, which are currently excluded under subsection (2).

The purpose of the current exclusions is that, subject to the general requirement of relevance, such evidence should be admissible outside the terms of the Bill. It is so central to the facts of the case that it should not be subject to particular rules of admissibility. Abolishing the common-law rules on bad character evidence, as proposed in clause 82, ensures that any evidence of previous misconduct or disposition outside the definition in clause 81(1) is generally admissible. Therefore there are dangers in equating spent convictions with evidence that is central to the prosecution and defence of a case.

Were amendment No. 396 accepted, evidence of spent convictions would be admissible subject to the Practice Direction (Crime: Spent Convictions) 1975. The Rehabilitation of Offenders Act 1974 does not apply to criminal proceedings. However, the 1975 direction directs the court to have regard to the spirit of the Act by refusing to allow any mention to be made of a spent conviction, except where it is in the interests of justice. However, without the supporting framework of the similar fact rule or any of the other common-law rules, that would create a good deal of confusion in deciding when exactly a conviction should be admitted.

Instead, we consider that spent convictions, like other potentially prejudicial evidence of character, should be subject to the rules set out in the Bill. The intention behind the amendment may have been to preclude the admission of spent convictions entirely—I recognise that it is a probing amendment. As I have tried to make clear, it does not achieve that, and even if it did, we would remain opposed to it. There may be circumstances in which a spent conviction is relevant to a current charge. It may, for example, be useful in showing a pattern of offending that would otherwise not be apparent. It might also be necessary to adduce it to correct a false impression given by the defendant. It may also have a particularly high probative value through a very close similarity between the conviction and the current charge, identifying that the defendant might well have been the perpetrator. Where the evidence is relevant in these or other ways, it should be capable of being admitted.

That said, safeguards are required to protect the defendant against the use of evidence that is marginally probative but may have a prejudicial effect. However, clause 84(3) will ensure that evidence of bad character is not admitted in such circumstances, and clause 84(4) specifically directs the court to consider the age of a conviction when

assessing its probative value. Thus, when the relevance of a conviction has diminished through age—a point raised by the hon. Member for North Down and the hon. Member for Southwark, North and Bermondsey—the court will take that into account in deciding whether it should be excluded.

This offers a more coherent and principled scheme than providing for arbitrary exclusion. Where the conditions in clause 84(3) are not made out—in other words, the evidence is more probative than prejudicial—the court should hear it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the argument that there are cases when previous convictions and convictions considered spent under the Rehabilitation of Offenders Act 1974 might none the less for the purposes of a criminal trial be included. The Minister's Department produced a report on the rehabilitation of offenders with a view to suggesting changes in the law, and I had a discussion with officials about what should be in it. If the law defining a spent conviction is to change, that puts a different complexion on matters. The report came out about a year ago and must by now have received responses. I expected its amended proposals to have come before Parliament for legislation—perhaps that will happen in the next Parliament. How far advanced is Home Office consideration of the proposals? Are they a priority or are they merely in the pipeline?

Hilary Benn (Labour, Leeds Central)

I am grateful to the hon. Gentleman for drawing attention to that. In a sense, he answered his own question when he said ''in the pipeline''. That remains the position.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Thank you. I believe that the hon. Member for North Down has something to contribute on the subject.

Sylvia Hermon (UUP, North Down)

I thank the hon. Gentleman. Will he ask the Minister particularly to consider the circumstances of those prisoners who came out under the Good Friday agreement, under the early release scheme? I understand that this legislation will extend to Northern Ireland, so what is the position of those prisoners? Will their convictions be regarded as being spent or will they be relevant?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Lady's point is particularly significant in the context of the current debates in Northern Ireland about amnesties and previous convictions and the potential repatriation, as it were, of the criminal justice system to Northern Ireland. Perhaps the Minister will be good enough to reflect on the question, talk to colleagues in the Northern Ireland Office and let us all have an answer. We all understand that there is an added dimension in the context of Northern Ireland.

The Minister gave a traditional response—

Hilary Benn (Labour, Leeds Central)

It was an honest answer.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand that. I hope that the Government will implement the proposals in the report. There is good evidence that there is a strong case that the law needs to be reformed in terms of the

rehabilitation of offenders. If that is done, and the law is changed as a result of this legislation in a way that affects which otherwise spent convictions can or cannot be included, the two will be interrelated. People with an interest in the matter will need to consider both the proposals in the pipeline and this legislation.

Hilary Benn (Labour, Leeds Central)

I take the hon. Gentleman's point about the importance of a review of the Rehabilitation of Offenders Act 1974, but I am not sure that the point that he is making directly relates to whether spent convictions should be considered in these circumstances. As I said in my response to the hon. Member for Woking, it would depend on the circumstances. I gave some examples of cases in which spent convictions may be included. They would apply regardless of how the definition of ''spent'' was changed by subsequent proposals.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand and agree. My point was that if one changes the rules governing spent convictions, by definition the impact of what is admitted changes.

Dominic Grieve (Conservative, Beaconsfield)

I have been pre-empted. We know from the Widgery guidelines of 1974 and the practice direction on the Rehabilitation of Offenders Act that if a conviction is spent it may still be used in evidence—the very point that the Minister has made. However, the presumption against that happening is raised. It has always been my view—that is why I am looking forward to the legislation so much—that the current Rehabilitation of Offenders Act, particularly in respect of offences committed by juveniles, bears little relation to reality and is very harsh in its application. I think that—through review of the Act and new rules—we shall get an extension that enables many convictions to become spent sooner.

The generality of the Government's paper on the subject tends in that direction. That will undoubtedly provide a powerful protection against spent convictions being bandied about in court under these provisions. The Minister has reassured us that there is no reason why the basic Widgery guidelines will be changed by the legislation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Has the hon. Gentleman given any thought—I do not know the answer—to whether the Government have it in mind to deal with the cases in which what was an offence is no longer an offence, so what could have been a conviction would no longer be a conviction? I remember the issue being raised in the House in relation to the age of consent and other things that were formerly offences. It is a secondary issue in this context.

Dominic Grieve (Conservative, Beaconsfield)

That raises an interesting point. If somebody says, ''I am a law-abiding citizen,'' but has previously broken the law, that might be held to his detriment even if he would not now break the law by carrying out the conduct that was alleged against him at the time. It is not completely clear-cut.

Hilary Benn (Labour, Leeds Central)

I can confirm what the hon. Gentleman said. I take this opportunity to go back to the point raised by the hon. Member for North Down about Northern Ireland prisoners. The convictions of those prisoners released under the

Good Friday agreement would have the same status as all other convictions: they are potentially admissible in subsequent cases, subject to the safeguards that we have been discussing.

Dominic Grieve (Conservative, Beaconsfield)

I have seen this in court on many occasions, which is why I am so keen to preserve that flexibility. I hope that it will be preserved. Judges raise their eyes to the ceiling when prosecutors attempt to bring in ancient offences—or indeed offences that are nowadays no longer regarded as serious. They simply exclude them. That is the safeguard of the judiciary being able to exercise its discretion. It is important, in bringing about the code, that we do not fetter that discretion by giving a nudge to the judiciary in a direction that is inimical to the interests of justice.

Humfrey Malins (Conservative, Woking)

We have had a useful debate. It was a probing amendment, and I shall not press it to a Division. However, although Committee members acknowledge that spent convictions can have relevance in the criminal courts from time to time, the attitude is different in the outside world. Although the criminal law is exempt, the reality is that section 4 of the 1974 Act—I had forgotten that it is nearly 30 years old—has the effect that a person who has become a rehabilitated person for the purposes of the Act in respect of a conviction, known as a spent conviction, should be treated for all purposes in law as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence or offences that were the subject of that conviction.

It was the purpose of the Act to send the message that it was possible not only to live down one's crimes and make amends to society but for society to recognise that fact by saying that the conviction was spent. I remember vividly in my early days of appearing in court that good people who were defendants were always anxious to find out at what stage they could again call themselves people of good character.

My hon. Friend the Member for Beaconsfield referred again to giving the judges a nudge—the tenor of clause 81 means, I am afraid, that we shall be giving judges something of a nudge away from the principles that we spoke of a little earlier. I hope that the Minister will consider the matter of spent convictions, so that if the law on spent convictions needs reform, or tightening up or amending, they will still mean what people always thought they did. This has been a useful short debate, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 8.

Clause 82 - Abolition of common law rules

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

In one sentence, we shall vote against the clause because we do not believe that the present law should be done away with until there is a satisfactory alternative.

Dominic Grieve (Conservative, Beaconsfield)

I was going to speak for more than a sentence. I want to know the impact of subsection (2) on maintaining the common-law rules for a person's reputation. I have looked at clause 102(1); I find it quite interesting, because if I understand it correctly—I wait for the Minister's response—it seems to be an interesting example of trying to codify the rules and then noticing that one issue cannot be codified that might be to the advantage of doing damage to a defendant.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 82 - Abolition of common law rules

Dominic Grieve (Conservative, Beaconsfield)

Just before we adjourned, I asked the Minister to explain the retention of the common law rules relating to a person's reputation. I should be interested to know the significance of that and what it would still allow that would otherwise be excluded.

Hilary Benn (Labour, Leeds Central)

Clause 82(2) retains the common law exception to the hearsay rule that allows a person's reputation to be used to prove his bad character. The retention of the rule is part of the provisions on hearsay in chapter 2 of this part of the Bill—specifically clause 102. Without it, there would be an apparent inconsistency between the retention of that rule for the purposes of the hearsay clauses and the abolition of all the common law rules governing bad character evidence. However, subsection (2) does not extend the admissibility of bad character evidence. It simply enables reputation to be used to prove a person's bad character. The fact that evidence of a person's bad character can be given will need to be established separately.

David Heath (Liberal Democrat, Somerton and Frome)

This morning, my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) said that we would not support the retention of the provision until we were assured of an adequate replacement, which we are still not. He is engaged in asking a question at the newly established Youth questions in Westminster Hall. I have heard nothing from the Minister that has reassured me, so I intend to divide the Committee.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 6.

Clause 83 - Non-defendant's bad character

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 387, in

clause 83, page 50, line 33, at end insert

'or—

(ba) it is important to establishing whether or not a witness is to be believed.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss

Amendment No. 435, in

clause 83, page 50, line 34, at end insert

'in relation to the credibility of any evidence which that person has provided and which relates to such a matter, or'.

Dominic Grieve (Conservative, Beaconsfield)

The clause deals with the provisions for the admissibility of a non-defendant's bad character. As we discussed in respect of clause 81, it is common in courts for witnesses called by the prosecution, or by a co-defendant, to have their reputations attacked in order to discredit them. A salient feature of the clause is that the test and threshold for being allowed to cross-examine the character of a prosecution or co-defendant's witness is pitched at a different level from that relating to the defendant. The report of the Select Committee on Home Affairs commented on that. Paragraph 120 says:

''Under the Bill the threshold for admitting the defendant's previous convictions will generally be lower than the threshold for admitting the convictions of other witnesses.''

It then deals with the defendant's position, and continues:

''By contrast, a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case''—

Sitting suspended for a Division in the House.

On resuming—

Dominic Grieve (Conservative, Beaconsfield)

In paragraph 120, the Home Affairs Select Committee says that, in contrast to the defendant's position,

''a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case. (The only other exceptions, for non-defendants, are explanatory evidence or where all parties consent).''

The Select Committee was very concerned about that, and making eminent sense stated at paragraph 122:

''We are concerned at the apparent inequality between the tests for admitting the defendant's bad character, as compared with a non-defendant's bad character. At the moment, a lower test of relevance seems to apply to defendants, than to non-defendants. In our view, there should be a standard test requiring the bad character evidence to have 'substantial probative value' in relation to a matter in issue, which is itself of substantial importance in the context of the case as a whole.''

I endorse that view. I am troubled by the two-tier system that we are introducing. I want to hear the Minister's justification for the imbalance that has deliberately been established. I have heard a bit about the background and I know that the Government have expressed grave concern about witnesses being deterred from giving evidence by having their past

raked up when that is not relevant to the case. However, I should have thought that even if we introduced an equivalence between the two categories, there would still be protection, just as it would not be possible to rake up an irrelevant previous conviction against a defendant. I am interested to understand the distinction that is being made.

That brings me to the two amendments. I do not think that the Minister is likely to disagree with what I suggested in an earlier debate about the standard reason for a defence barrister to want to cross-examine a prosecution witness or, for that matter, a co-defendant, about his past. Sometimes such cross-examination may run to the fact that someone else has committed the offence or it may be intended to explain something else about the case; but the bog standard reason, if I may use that expression, is that the defence wants to say that the witness is lying through his back teeth. They do not say that he is mistaken, or that although the witness says he saw the defendant he must have got that wrong. They want to say that the witness is telling an outright black lie, and to show reasons why he might do that.

To support that argument, permission has always been granted to cross-examine such a witness if he has previous convictions. The matter has rarely gone beyond that, in my experience. I suppose that it would be open to the court to permit cross-examination as to other, general bad character, but in my experience the decision usually goes to the fact that the witness has four or five convictions. He may be well known locally as someone who grasses to the police when it suits him. There may be all sorts of other issues to be raised to suggest that he is no better than the person whom he is trying to condemn, and that he may have his own motives, other than the public interest, in giving evidence.

One would hope that in those circumstances, clause 83(1) would cover the issue being joined between the witness and the defendant. I find it astonishing, given that the central issue in 90 per cent. of cases will be whether the witness is to be believed on a particular matter, that that is not expressly included in the provision as one of the grounds on which evidence of the witness's bad character can be adduced, and on which he can be cross-examined.

I am glad that two amendments have been selected. I admit that amendment No. 387 might give rise to an argument that the use of the word ''important'' is not sufficiently strong to ground the judge's discretion. I want to make it clear that if the defendant wanted to say that the witness was lying about some peripheral issue that was completely irrelevant to the main issue between the parties, the judge would be entitled to say, ''I am not going to allow you to cross-examine him as to character on that. It is wholly irrelevant to the issues that the jury must decide.''

However, the moment evidence of bad character becomes relevant, because it is important in establishing whether the witness can be believed, the right to cross-examine the witness on his previous bad character must be preserved. If we do not allow it, and

permit the defendant to be forbidden to do that, I have the gravest doubt that the measure will pass the scrutiny of the European convention on human rights. It is salient and central that someone should be allowed to challenge witness evidence brought against him. I know that we have some interesting, indeed, controversial, exceptions on matters such as previous sexual history, but the argument in that context is that that is not an issue of character of any relevance—although the hon. and learned Member for Redcar (Vera Baird), who is not in her place at the moment, made some interesting points about that.

Perhaps a witness says, ''I saw the defendant go into the shop''—that he is accused of burgling—''at 2.58 pm,'' and the defendant says, ''This man knows me very well; there cannot be a mistake. He is telling lies about me.'' His counsel may then want to explain what those lies are and why the man should not be believed. That evidence must be admitted. If clause 83 would prevent that, we must make jolly sure that it does not.

Amendment No. 435 provides an alternative route to achieve the same end. The Committee may prefer it. It introduces into subsection (1) the words

''in relation to the credibility of any evidence which that person has provided and which relates to such a matter''—

which would be a matter that was explanatory or had ''substantial probative value''. Somehow or another we must specify the likely circumstance in which the provision would be relevant. My anxiety is that there is something nebulous about the descriptions of evidence admissible under clause 83(1), which state that it is ''important explanatory evidence'' or that it ''has substantial probative value''. They are in the ''How long is piece of string?'' category. We must be a little more precise. If someone claims that a witness is lying on an issue that is relevant in the case, and is not peripheral to the matters that the jury must decide, the right to cross-examine on character must be explicitly preserved. If it is not, the right to a fair trial will go out of the window.

David Heath (Liberal Democrat, Somerton and Frome)

I shall briefly discuss some of the issues that the hon. Gentleman has rightly raised. If we go down the route that is proposed with respect to evidence of bad character, the most essential ingredient should be balance in the interests of justice and the proceedings. To an extent, clause 83 is an attempt to establish that balance, but as the hon. Gentleman has said, it does not do that. There is no equilibrium between the tests to be applied to evidence about a defendant and those to be applied to evidence about a non-defendant. That causes me the same concern as the hon. Gentleman.

I should be happier if a subsequent definitive clause were included explaining how to interpret clause 83(1)(b)(i), which refers to

''a matter in issue in the proceedings''.

I note that clause 87 qualifies the reference in the parallel provision, clause 84(1)(e), to a

''matter in issue between the defendant and the prosecution''.

Clause 88 provides a description of a

''matter in issue between the defendant and a co-defendant''

referred to in clause 84(1)(f). However, the Bill is entirely silent on the interpretation of

''a matter in issue in the proceedings''

as mentioned in clause 83.

The credibility of a witness or the fact that they may be supplying evidence that is a tissue of lies and for which there is a clear suggestion of a motive, given their record or the circumstances of their previous behaviour, are cogent matters that should be covered in the Bill. The amendments may not necessarily be the only way to achieve that objective, but the Minister would help the Committee and improve the legislation were he to find a way to ensure that what should be considered by a court in the interests of justice was considered by a court in the interests of justice.

Unfortunately, the hon. and learned Member for Redcar is not with us this afternoon, but she made a valid point this morning about the sexual history of a witness, to which I do not think the Minister quite did justice. I see no reason why that would necessarily be excluded under the clause. As the Committee knows, I am not a lawyer and I do not have the experience of other members of the Committee of working in a legal environment, but I understand that, following gross abuses of the system in the past by counsel for the defence, it is by rules and guidance that such evidence is no longer admissible. I am not clear, given that this legislation will surely replace that ruling and guidance by statute, how that is to be preserved.

Hilary Benn (Labour, Leeds Central)

It may help the hon. Gentleman and the Committee if I say that section 41 of the Youth Justice and Criminal Evidence Act 1999 sets out the circumstances in which evidence of a complainant's previous sexual history is admissible in trials for sexual offences. The Bill does not alter the situation under that Act, so where evidence about character is also evidence to which section 41 applies, it will need to meet the conditions of both sets of provisions.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister, although I would be more comfortable if that cross-reference were explicit in the Bill. Rather simplistically, I believe that statutes should be understood by those who use them, whether or not they happen to be professionals in this sphere.

James Clappison (Conservative, Hertsmere)

The hon. Gentleman is making a very fair point. It is difficult for anyone to cross-refer to such sections and, as he said, an important reference was made this morning. Does he agree that a full reference to section 41 of the Youth Justice and Criminal Evidence Act 1999 would be helpful to those of us who do not have it at our fingertips all the time, so that we could fully understand it and where it fitted into this legislation?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman makes a self-evidently important point. I hope that the Minister will take us further down that road by saying that it might be helpful to have an explicit reference in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

Dare I suggest that one reason why that reference is not explicit might be that there is an inherent contradiction between that and clause 81 on bad character? After the words

''might be viewed with disapproval by a reasonable person''

at the end of clause 81(1)(b), one would have to add, ''but not if it were subject to the Youth Justice and Criminal Evidence Act 1999.''

David Heath (Liberal Democrat, Somerton and Frome)

I absolutely agree. I am glad that we have teased this information out of the Minister, because there is clearly a need for a better definition and more explicit legislation. He has not satisfied the Committee simply by asserting that two apparently blatantly contradictory pieces of legislation can co-exist safely in such a sensitive area as defining what evidence may be admissible in criminal law. I hope that the Minister and his officials will consider that. Having said that, the hon. Member for Beaconsfield (Mr. Grieve) made an excellent case for the amendments, and it remains for the Committee to hear the Minister's reply.

Hilary Benn (Labour, Leeds Central)

There are a few more general points to make about the clause before I reply to the hon. Gentleman.

The clause sets out the circumstances in which evidence can be given about the bad character of a non-defendant. Parties might seek to introduce such evidence for various reasons such as the credibility of a witness, which, as the hon. Member for Beaconsfield pointed out, makes their version of the events less believable. He also pointed out that the defendant might want to suggest that another person was responsible for the crime and introduce evidence of their bad character to support their suggestion.

In common law, the bad character of a non-defendant is generally admissible, subject to the requirement for bare relevance. In practice, as we heard, the effect is to give parties free rein in attacking a witness's character. As the Law Commission said in its 2001 report, the current law often exposes

''witnesses to gratuitous and humiliating exposure of long-forgotten misconduct.''

According to the witness satisfaction survey 2000, 40 per cent. of witnesses did not want to give evidence again because of the intimidation or the experience of going to court and being cross-examined. That is something that the Committee should be concerned about, and that we should aim to address.

There is also a danger that the evidence will distort the issues in cases and so inhibit the search for truth and an accurate verdict. Only evidence that will clearly assist the court in determining the case should be admissible. The clause will offer substantial new protection to witnesses against unnecessarily wide-ranging and humiliating attacks on their character, and will ensure that only evidence that is clearly relevant is admissible. Therefore, evidence of a witness's bad character will be admissible only in carefully defined circumstances. It must have substantial probative value to matters at issue to which it is relevant. In the case of what is currently called background evidence, the evidence must be such that the jury or the court would find it impossible to understand other evidence without it, and that it would substantially affect their understanding of the case.

The clause sets clear and substantive limits to the admission of such evidence. Subsection (4) makes it clear that it will not be possible to introduce such evidence without the leave of the court. The current system offers little incentive for scrutinising the evidence before it is heard, but the clause ensures the lead requirement that its relevance must be clearly articulated and established by the court before it is admitted.

As we heard, the amendments would not have an identical effect. Amendment No. 387 would deal with evidence relating to specific and general credibility. Specific credibility is whether a person is to be believed in the circumstances of the case. Evidence relevant to that might include evidence that they have been bribed or had a grudge against the defendant. General credibility refers to whether a person is believable. Relevant evidence would include evidence of dishonesty and untrustworthiness. Amendment No. 435 is more focused on specific credibility alone.

The distinction is not important. I hope that I can reassure the hon. Member for Beaconsfield by saying that we agree that a defendant should be able to introduce evidence to test the credibility of a witness or of their evidence, as that might have an important impact on whether their testimony is believed. However, the amendment is unnecessary, as the proposed scheme already makes that sort of evidence admissible.

Clause 83(1)(b) enables evidence to be given that is probative of the matters at issue. The provision covers whether a witness is to be believed. Whether their evidence is accepted will have an important impact on whether the facts to which it relates have been proved. The evidence will therefore be admissible under the paragraph, provided that the conditions in it are met. They require in the first instance that the evidence have substantial value to the matter in issue. That would exclude trivial or marginal evidence of credibility that would have little bearing on a court's assessment of evidence or on the issues to which it relates.

I note that amendment No. 387 would require the evidence to be important to credibility, and subsection (1)(b) reflects that. Sub-paragraph (ii) says that evidence of bad character may be introduced ''if and only if'' it

''is of substantial importance in the context of the case as a whole''

That ensures that important evidence concerning credibility that would affect only a marginal issue in the case would not be admissible. That is not reflected in the amendment, but it is a condition that we consider to make sound sense.

Amendment No. 435 would require no particular degree of probative value of the evidence, and that reflects common law. However, the amendment would offer witnesses insubstantial protection against allegations that might affect their standing in a case. It would also allow evidence to be introduced that was of marginal value to the proceedings. We therefore consider that a requirement of substantial probative value is warranted. Evidence that is important in

establishing whether a witness or their testimony is to be believed can certainly be admitted under clause 83 as it stands, and therefore the amendment is unnecessary.

The higher relevance test was mentioned by the hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath). In the case of defendants, the critical test is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract it, is admitted. However, as only the defendant in the case is at risk of conviction, the test is apt for their protection only. Nevertheless, it is important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character; and it is to protect non-defendants from such attacks that a test of enhanced relevance is proposed.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has gone some way to satisfying me on witness credibility; I remain more concerned about the lack of equivalence between the two provisions. He made an interesting point: for defendants, the probative value of evidence must not be outweighed by the prejudicial effect. That is the basic test. Why, however, should the same test not be applied to witnesses? After all, clause 83 says that it should be possible to cross-examine a witness about their previous bad character if that has a probative effect, although one must consider the prejudicial effect that it would have on anybody to have their past bandied about in court when it could be irrelevant to the issues that the jury must consider. That is the protection that we are trying to provide.

I have sympathy with the Minister when he says that it is a matter of public concern if the frequency with which witnesses' previous bad character is introduced into court is such that the public begin to wonder about its relevance; and when it starts to deter people from giving evidence in court. Both are undesirable. Of course, one must accept that it may be inevitable that if a witness has an appallingly bad character he will be deterred from giving evidence by the fact that that bad character must come out in court in order that justice be done. The interests of the defendant must be favoured if we are to maintain a fair trial system. We cannot have a system in which the courts say, ''In order to protect this witness from adverse publicity and the humiliation of having his bad character revealed when he is giving evidence, it is necessary to conceal that bad character in a way that would be prejudicial to the defendant.'' I am sure that the Minister will agree that that would be utterly undesirable.

Oddly enough—or perhaps inevitably—I remain unpersuaded that the lack of equivalence is justified. The test of probative value as against prejudice applies just as well to the defendant as to any other witness. When judges sum up a case they often point out to the jurors that the defendant is no different from any other witness who has given evidence and that they should treat him no differently in assessing what he has said. Indeed, it should be a central feature of our courts

system that a witness is a witness whether he is a prosecution witness, a defence witness or anybody else.

One has only to go round the courts in this country to see how prosecution witnesses are treated completely differently from defence witnesses when it comes to the accommodation and attention that they are paid by the court staff. They are provided with discrete accommodation, nice magazines and endless supplies of coffee, while the poor old defence witness is relegated to some cubby-hole with graffiti on the walls in which he is detained until he goes into court to give evidence. This is quite a serious matter. Any visit to a magistrates court, which I recommend to the Minister, will reveal that fact very clearly.

I do not like this distinction. Ultimately, we are testing witnesses—whether defendant or another witness—and deciding what is acceptable. The probative against the prejudicial is an excellent test, which I heartily endorse. I certainly do not want witnesses to be cross-examined on their previous character when that is irrelevant. It is the judge's duty to prevent the harassment of witnesses. Prosecution or defence counsellors who do so should be pulled up. One problem over the years has been the judiciary's increasing reluctance to manage trials. That is the fault of the Court of Appeal, which has been allowing too many appeals. When a judge finally told a defence counsellor who was misbehaving that he could not ask a particular question, it was the grounds for an appeal that was subsequently allowed.

Counsel, particularly defence counsel, have abused their rights to cross-examine. In the old days, judges would have pulled them up, but that no longer happens, which is unfortunate. I am not sure that the proposed devices do not contain seriously damaging flaws. Although I reserve my position on the clause, which I will consider again in a moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.

Clause 84 - Defendant's bad character

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 325, in

clause 84, page 51, line 29, leave out 'bad character' and insert 'previous convictions'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following:

Amendment No. 471, in

clause 84, page 51, line 29, after 'character', insert

'which is of direct relevance to issues in a particular case'.

Humfrey Malins (Conservative, Woking)

I think that the Committee will agree that our major debates today concern this clause. The Home Affairs Committee, which rightly said that the issue of bad character was the most controversial part of the Bill, identified an area that has troubled us from the beginning of the debate this morning. ''Bad character'' is defined in clause 81, and we deal now with the bad character of the defendant and its admissibility in court proceedings. With amendment

No. 325 we are trying, yet again, to restrict the definition of bad character to the issue of previous convictions. There are many reasons for wishing to do so.

At some stage, the Minister must explain why on Monday, Wednesday and Friday he applauds the work of the Home Affairs Committee and says that it was right, but on Tuesday, Thursday and Saturday he takes the view that it has come up with the wrong answer. He knows as well as I do that it is utterly unhappy with the Government's proposals.

We expounded arguments in this morning's debate on why bad character should be limited to previous convictions. Let us dwell on the issue for a moment, and transport the Committee to the Crown court where the judge is summing up the case for the jury. While the defendant has been giving evidence, his barrister has said to him, ''Now, Mr. Smith, you are 50 years old, you have never been convicted of any criminal offence, and you are therefore a man of good character. You also do a lot of good work for your church and for other people.'' The defendant has agreed with all those statements. The judge then says to the jury at the end of the trial that the defendant is a man of good character, not just because he has no convictions recorded against him, but because witnesses have spoken of his positive qualities. That is a standard form of direction of the jury, approved by the Court of Appeal.

Good character cannot by itself provide a defence to a criminal charge, but it is evidence in the defendant's favour that a court should take into account, and for two reasons. First, the defendant has given evidence and, as with any man of good character, that supports his credibility. Secondly, the fact that he is of good character may mean that he is less likely than otherwise might be so to commit the crime now—the issue of propensity.

An important note attached to my briefing states:

''If the judge rules that a defendant should be treated as a man of good character even though strictly speaking he is not (for example because he has spent convictions), the full direction on good character should be given to the jury.''

Ponder that, Mr. Cran, and compare it with that with which we are currently faced.

The clause provides, in paragraph (g), that evidence of the defendant's bad character should be admissible if

''it is evidence to correct a false impression given by the defendant''.

Is the defendant giving a false impression when, through his counsel, he answers, ''Yes'' to the question, ''Is it right that you are a man of good character and have never been convicted of any criminal offence?'' Where is the protection for the defendant? One hastens to look at subsection (3), which states that the court must not admit evidence where it is prejudicial. However, that does not apply to the issue of correcting a false impression given by the defendant.

The wide definition of character includes, as we have heard, the person who has tended to show that he

''is disposed to behave in a way that . . . might be viewed with disapproval.''

The hypothetical person standing in the dock to whom I have referred might have been subject to a civil injunction concerning a matrimonial or neighbourly dispute, to a bind-over in any number of courts, or to an antisocial behaviour order, which is not a criminal conviction.

The Minister is saying that from the moment the Bill becomes law, the person who has been bound over, or been subject to an injunction or an antisocial behaviour order, but who has no criminal conviction against him, cannot in response in court to his barrister's saying, ''Is it right, Mr. Smith, that you have never been convicted of any offence, have you, and are therefore a man of good character'', say ''Yes.'' That is astonishing.

The direction that is currently given by the court in relation to bad character is interesting. The judge is obliged to say to the jury:

''You have heard that the defendant has previous convictions (for x, y, z). What is the relevance of the defendant's convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has previous convictions.''

These are the key words:

''His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now.''

The first part bears repetition. His convictions

''are not relevant at all to the likelihood of his having committed the offence''.

They are relevant only as regards his credibility and have nothing to do with propensity. The Minister is going to have to answer this question. The wide-ranging first line of the clause refers to the admissibility of the defendant's bad character, even if it is limited to previous convictions, as it should be for the reasons that I have given. Is admissibility of bad character relevant to the likelihood of his having committed the offence? Is it relevant to propensity as opposed to credibility?

I want to conclude, because we need to have serious debates about a series of groups of amendments. My proposition is that the scales are now tilting against the defendant. The presumption of innocence that we have held very dear for very long is gradually being chipped away at. It is odd, but in most jury trials—this is really anecdotal—the defendant will have had previous convictions. It is rare for someone to come before the court with no previous convictions. The old presumption of innocence, whereby the defendant has to be tried on the evidence that is before the court, is disappearing slightly. It will be replaced.

Peter Rook QC, Chairman of the Criminal Bar Association, spoke to the Home Affairs Committee about the problem of a weak identity case. Let us take the case of a person who is charged with burglary. The identification evidence is not very strong but the chap has a string of previous convictions and the police take their eye off the ball. The jury immediately becomes

deflected from the real issue—the evidence in the case against the man—because there are previous convictions. If the issue of previous convictions raises problems, to widen it to bad character leads to an enormous potential for prejudice against the defendant.

It used to be said that if one did not have a criminal conviction, that was much to one's credit, and it was to be said in one's favour in open court. It can no longer be said. It is as simple as that, because as soon as someone starts putting himself forward as a person of good character, they can get him under paragraph (g) because he has given a false impression. The problem is that there is no way out of that. That is the reason for the amendment, and I hope that it prompts a stimulating and furious debate.

Ian Lucas (Labour, Wrexham)

Does the hon. Gentleman think that it is right that a defendant should be able to give a false impression to the jury, and that the prosecution should not be allowed to contradict that impression?

Humfrey Malins (Conservative, Woking)

I respect the question, but what is a false impression? I believe that a man or a woman who stands before a court never having been convicted of a criminal offence is a person of good character. That has been the judicial situation for hundreds of years. The directions issued by the Judicial Studies Board on what is to be said to the jury have not been dreamt up over night; they have been laid out over a long time and represent a great tradition in our law. I believe that a person should be able to say, ''Yes, I am of good character'', and not have it thrown back at him that he has done something wrong. It is not fair to give civil penalties the same status as criminal convictions. The defendant should not be subject to the vagaries of being charged in contradiction to his assertion that he is a man of good character with no convictions but, in contradiction to that, be charged with behaving in a way that might be viewed with disapproval by a reasonable person.

David Cameron (Conservative, Witney)

I am following my hon. Friend's argument, but I have one concern. Will he clarify how serious an offence must be for someone to be bound over to keep the peace, and is it possible that people can be bound over repeatedly? If so, the point that he makes will not have as much force. Not being an expert, I am not aware of how serious an offence must be for someone to be bound over.

Humfrey Malins (Conservative, Woking)

My hon. Friend raises a good point. The best answer is that by and large the activities for which one can be bound over to keep the peace are generally speaking fairly low level—the sort of behaviour that might otherwise be at the bottom end of public order offences on the streets. Being bound over is not a conviction. When a bind-over is given, the case is marked on the court register as having been dismissed. However, I have known it to be done in cases of fairly low-level violence. I have occasionally known it to be done in cases beyond common assault and of actual bodily harm.

David Cameron (Conservative, Witney)

While my hon. Friend was talking, I remembered when I first came across the expression.

For many years, my mother was a magistrate in Newbury, where the Greenham common protesters were frequently bound over and the cases dismissed. That example might help my hon. Friend. If one of those protesters, who had done nothing but protest, came before a court on another offence, he could not be of good character—something that Labour Members, whose CND badges are now safely in their pockets, may feel uneasy about.

Humfrey Malins (Conservative, Woking)

My hon. Friend is absolutely right; those are exactly the sort of people who I mean.

I have made by arguments, and in a fair world the amendment would be accepted.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Member for Witney (Mr. Cameron) is absolutely right that we are dealing with the presumption of innocence. We are coupling that with the presumption of admissibility, which we shall be debating later. When discussing clause 81 and amendment No. 469—the amendment covers some of the same ground as amendment No. 325—the impression was given that we should not mind about the width, the latitude and the rather inchoate nature of the definition under clause 81, because it would be focused by the strong lens of clause 84, which would ensure that nothing irrelevant or unproved would pass the test. Taken together, however, clauses 81 and 84 suggest quite the opposite, and evidence that is not the result of a conviction, or which may not be directly relevant to the points at issue, could quite properly be adduced as an indication of bad character. That is what gives us such cause for concern.

As the hon. Member for Woking (Mr. Malins) usefully argued, someone may have been charged with a separate offence that is neither relevant to the matter in hand nor on the same indictment, and evidence that a court had yet to test could be introduced as an indication of bad character. That gives me great cause for concern.

I am also concerned by the width of the examples that the Minister gave when we discussed adducing cautions. I have a real problem with cautions. They are a useful mechanism, but they are not subject to a legitimacy test and can be administered on the assertion of a police officer. I recently dealt with the case of a young man who had been cautioned by the chief constable of a neighbouring constabulary. He contested the caution because he felt that it was inappropriate, but it remains. There is no way of deleting it or of testing it in the courts—at least, there was none that he was aware of when he was cautioned. Ever since, he has protested that it should not remain.

I wrote to the chief constable, and he replied, arguing, ''Never mind, it won't show up in an employment application, because it doesn't count as a record in that sense. You needn't worry too much.'' It might, however, be brought as an example of bad character in court proceedings to demonstrate that that young man is not to be trusted because a constabulary once cautioned him. That could happen even though he asserts that he did not commit the offence and the caution has not been tested in court. That would give me great cause for concern.

Ian Lucas (Labour, Wrexham)

But is it not the case that a caution is administered only when the person admits responsibility?

Sitting suspended for a Division in the House.

On resuming—

David Heath (Liberal Democrat, Somerton and Frome)

I was about to respond to the hon. Member for Wrexham (Ian Lucas), who has the advantage of knowing the law. I accept his basic point that there must be an admission of guilt, but I would make a distinction. Individuals who receive a caution usually have no legal representation, unless they happen to have a lawyer in tow. As far as I am aware—I am open to correction—there is not necessarily agreement on the terms under which cautions are administered, so they cannot subsequently be challenged.

Potential defendants often welcome cautions, because they do not involve going to court and possibly receiving a criminal record. As an early and easy means of disposal, they are used more often than not to avoid criminal proceedings. They should not, therefore, be admissible as evidence of bad character in the sense used in the Bill.

There are many other cases, and I do not want to rest my argument on the issue of cautions. I understand the point made by the hon. Member for Woking. I use cautions as an example simply because the Minister identified them as possible evidence of bad character under clause 81. Under clause 84, that would get through the net, as would a lot of other evidence that might be either civil in character or somewhat distant from the precise terms of the case in question, and for which the relevance test in subsection (1)(e) is helpful, although that needs to be strengthened. That is why my hon. Friend the Member for Southwark, North and Bermondsey and I tabled amendment No. 471.

I imagine that the Minister's response to the amendment from the hon. Member for Woking will be to say that it takes us further back than we presently are in relation to a similar test that is used under current proceedings. I could understand his resisting that amendment for those reasons. Nevertheless, the filter is open too wide now, and too much will get through. Until we can narrow the application of clause 84, we are right to try to do the same under clause 81. Only by achieving a correct equilibrium between the provisions in clauses 81, 84, and 83 will there be any possibility of a fair trial, on which we had always depended.

Paul Stinchcombe (Labour, Wellingborough)

Could the hon. Gentleman say which cases he thinks would fall outwith subsection (1)(e) and therefore need to be covered by his amendment?

David Heath (Liberal Democrat, Somerton and Frome)

I do not think that the issue is to do with cases so much as the breadth of evidence that could be adduced, which amendment No. 471 could assist in filtering out.

Paul Stinchcombe (Labour, Wellingborough)

If the hon. Gentleman wants to talk about evidence, not cases, what evidence does he think would pass through the filter of subsection (1)(e), but be caught by amendment No. 471?

David Heath (Liberal Democrat, Somerton and Frome)

My concern is that, if someone had a long record of committing perjury and that was adduced as a reason for not accepting his evidence, which was contested in the trial, it would be relevant history of bad character. However, if it was wider than that—if that person was a bad egg generally or not entirely trustworthy, for example—it is doubtful whether that would necessarily be relevant, although it could be relevant to a matter in the trial. I simply feel that the evidence needs to be both specifically relevant and generally relevant in order to pass an adequate test.

I hope that that makes some sense to the hon. Gentleman. We shall not fall out over that point, as I do not think that amendment No. 471 is the strongest amendment that we shall move this afternoon. It is merely an attempt to elicit a response from the Minister on the question of how we can ensure that any evidence so used is directly relevant to the issues of the case. I believe that there is a lacuna in the provisions.

Paul Stinchcombe (Labour, Wellingborough)

I just wonder whether the lacuna might be that, as matters stand, evidence could be admitted in subsection (1) under paragraphs (a), (b), (c), (d), (e), (f), (g) or (h) without being relevant at all.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has helped me a great deal, and it is always usepful to have assistance from whatever quarter. That is a sensible way forward. Frankly, without that relevance, the evidence should not be used in the trial. It could be argued that there are other filters, but I cannot find them. I do not want to pre-empt later discussions about the requirement of the leave of the court, but there should be the highest possible safeguards to prevent the introduction of irrelevant material, which would be deeply prejudicial to the case and to the defendant. That would not be in the interests of justice; it would be an exercise in establishing the all-round bad character of a defendant in circumstances that would not allow for a fair trial.

Dominic Grieve (Conservative, Beaconsfield)

It is difficult to compartmentalise one's arguments, even within clause 84, which is governed by clauses 85 to 90. Those clauses go into considerable detail about what constitutes the various matters listed in paragraphs (a) to (h) of clause 84(1). We are slowly feeling our way to the nub of some of the issues, although I detect a tendency to slip away from it because of the mischief of clause 86 and the matter of propensity.

As my hon. Friend the Member for Woking explained, the traditional rule is that apart from restricted exceptions in the case of similar fact evidence, evidence in relation to a defendant's character refers only to his credibility. My hon. Friend read out the direction that is given to the jury, which will presumably have to be substantially changed after the Bill is enacted. I suspect that in most cases applications will still be made under that rule, but key paragraphs of the clause are not protected by

subsection (3), which balances the adverse effect on the fairness of the proceedings, giving a discretion for matters not to be admitted. Read in the light of that rule, clause 84 gives rise to serious concern.

The issue of bind-overs was mentioned, and I shall take an example from personal experience of a case in which the defendant was charged with robbery, which is rather a serious offence. He was brought up in front of the red judge, at what used to be the assizes—a Crown court in Shropshire. The allegation was that he had robbed two 14-year-old boys of their watches, but the facts were that the two boys, having gone on a fishing trip, had seen the defendant's vehicle parked by the side of the lake and committed an act of criminal damage on the vehicle. They smashed the wing mirrors and kicked and dented the side.

The defendant came back from his afternoon's fishing and was very angry about the damage to his vehicle. He threatened to hit the two boys with a stick and then took their watches from them in compensatory payment for the damage they had caused to his vehicle, exercising what I suspect he thought was a bit of rough justice. He was a man of impeccably good character of whom everybody spoke highly, and he lived in modest circumstances. The trial came up in front of the judge, who took one look at the papers and roared with laughter. He summoned the boys to court and bound them over to keep the peace and be of good behaviour for 12 months.

If, two years later, that person were to come to court on any offence, what would be the significance of that episode under the present rules? The answer is that it would be regarded as completely irrelevant. He would be treated as a person of good character. He could say in the witness box that he was a man of good character with no previous convictions, and I am sure that the prosecutor would not try to gainsay it. However, clause 84 opens the possibility of that episode having significance. More interestingly, subsections (1)(c) and (g) will allow that to take place without bringing into play the adverse effect protection of the fairness of the proceedings, which would allow the judge to prevent it happening.

If the Minister were minded to include the protection of subsection (3) for all the paragraphs in subsection (1), I would be much happier with the proposals. As I am trying to be constructive, he may want to reflect on that, and I would be interested to learn why that could not be done. One must accept that if one gives people the opportunity to exploit a new rule, it will be exploited. Prosecutors will use it, under pressure from the CPS, so the idea that the old rule will prevail except in exceptional circumstances is flawed. If the court has no ability to fetter the prosecutor's discretion in giving a false impression, evidence about something that is profoundly irrelevant may be admitted. The Minister would go some way towards satisfying us by reviewing the protection afforded by subsection (3) and extending it to all the categories in paragraphs (a) to (h) in subsection (1).

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman agree that of those categories in subsections (1)(a) to (h), the most significant is in paragraph (d)? It is implicit that the provision envisages that each conviction in the

category is prima facie relevant to another alleged offence in the same category, while in the other paragraphs, it might be argued that the words make it clear that the cases are prima facie relevant.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. If I have understood the drafting correctly, a previous conviction of an offence of the same description is automatically treated as relevant and therefore admissible. However, that is still subject to the adverse effect protection of subsection (3), which allows the judge, in balancing out the effect on the trial's fairness, to rule that information inadmissible. That is a powerful protection, which already exists, although in a limited form.

I shall try to limit my remarks about clause 87 before we get to it, but I think that it is dreadful. It is about propensity, which has poisoned the entire wording and structure of clause 84. If we got rid of propensity, it would be easier to make sense of clause 84, and it is the propensity clause, to which I object strongly and strenuously as a matter of principle, that gives me so much trouble.

I shall try to break the arguments down, because we cannot debate all the clauses rolled into one. At this stage, it would help if the balancing provisions of adverse effect protection applied to all. Otherwise, some circumstances falling outside those balancing provisions could fall within their scope, thereby affecting fairness. I am pointing to one way of getting through the morass of clause 84, and I await the Minister's response.

James Clappison (Conservative, Hertsmere)

I hope that I made it clear earlier that I am not opposed in principle to the Government's objectives. A strong argument can be made for codifying present law, and the Minister prayed in aid Lord Justice Auld's analysis, which confirmed its haphazard basis. It would do no harm to bring the law together into a code that would be more readily understandable to everyone, particularly the public.

I do not set my face against the wider admission of previous convictions in criminal cases, but it involves risks and we must ensure that it conforms to the interests of justice. I share the concerns of the Home Affairs Committee on that score. It may assist the Committee if I cited paragraph 116 of its report, which makes the case clearly and succinctly:

''We have some difficulty with the proposal to allow the defendant's similar previous convictions to be automatically admitted at trial. In the light of the Oxford Study, we believe that these provisions could lead to miscarriages of justice in some cases. In particular, we are concerned at the prospect of using a defendant's previous record to prop up what might otherwise be a weak case. We are also concerned that this will increase the temptation for the police to pursue the 'usual suspects'.''

That is a fine summary of the concerns expressed by criminal law practitioners and others to the Home Affairs Committee. The prejudicial effect of admitting previous convictions, particularly in highly emotive cases, is a major anxiety. A further worry is the risk that the police would pursue people with previous convictions for the same type of offence.

We are discussing a highly significant change in the law. As it stands—though purists may pick holes in the

argument—evidence of previous convictions is generally excluded, unless one of a range of exceptions applies. Under the Bill, particularly clause 84(1)(d), the general presumption is to admit evidence of previous convictions. Indeed, without some filter, such evidence will routinely—the Select Committee used the term ''automatically''—come before the court and the jury.

It is crucial that judges possess the discretion to ensure that proceedings remain fair. Under subsection (3):

''The court must not admit evidence under subsection (1)(d), (e) or (h) if . . . it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.''

I share the concerns of the Select Committee that, even if the prosecution case were fairly weak, evidence of the defendant's previous convictions could unduly influence members of the jury and prevent them from examining carefully enough the actual evidence presented. It would help me—and would have helped the Select Committee—if the Minister provided some guidance on the operation of subsection (3). Could judges, in deciding whether it was fair to admit previous convictions, take a view on the prosecution evidence, particularly if it would otherwise be weak? It would be helpful to have that clarified. I think that Lord Falconer gave evidence of that general tenor to the Select Committee, but it would be helpful to get something on the record from the Minister now.

David Cameron (Conservative, Witney)

I want to clarify something, following what my hon. Friend has said. What is remarkable about subsection (3) is that it allows the court not to admit evidence under certain conditions in clause 84, but not all of them. A key point for the Minister to make clear is why the court can say no in some cases, but not others.

James Clappison (Conservative, Hertsmere)

My hon. Friend makes a very good point. The Minister must say why only part of clause 84 applies. Of course, subsection (1)(b) covers the case in which

''the evidence is adduced by the defendant himself''.

In addition, how are the courts to approach subsection (1)(d), which routinely admits evidence of previous convictions? How will judges exercise their discretion under subsection (3) as far as that is concerned? Will they be alive to the risks that that may pose when there is very weak prosecution evidence, such as the risk that the jury will be unduly influenced by evidence of previous convictions?

Hilary Benn (Labour, Leeds Central)

This has been an extremely useful debate. We shall come next to a substantial number of amendments, and I shall respond to some points, including those raised by the hon. Member for Hertsmere (Mr. Clappison), at that stage, if that is acceptable to hon. Members. It is not that I do not intend to address the very pertinent points and questions that have been raised; it is just that it would be more appropriate to deal with them then.

I bow to the great knowledge of the hon. Member for Woking in these matters because of his legal experience, and he will know that a defendant can be

cross-examined on his bad character if he has claimed to be of good character. Those circumstances are covered by subsection (1)(g). That issue already arises in relation to the law, and the law deals with it.

The direction that evidence is admitted in relation to credibility alone is used only when the evidence is admitted under the Criminal Evidence Act 1898: that is, if the defendant has claimed good character or attacked a witness. It is not used if the evidence is admitted under the similar fact rule, when the evidence is admitted specifically on the question of guilt.

The hon. Gentleman helpfully read out two directions, and described the hypothetical situation of the man in the witness box who answers the questions by saying, ''Yes, I have no previous convictions, and yes I am a man of good character.'' The intervention from the hon. Member for Witney helped us to understand precisely why the change should be made, because in answer to his question, the hon. Member for Woking acknowledged that, in his experience, it would be possible for a person to be cautioned for an incident of violence, and a caution involves that person admitting the offence, as my hon. Friend the Member for Wrexham pointed out.

Let us say that the mythical man in the dock has had two cautions for violence in the last eight months and is now charged with grievous bodily harm. Even though he was not convicted, should he able to say that he is a man of good character or that he has never been in trouble with the law, and not run the risk that the fact that he has been cautioned twice for violence will be admitted? My argument is that that defies common sense—that is a non-legal term—and common sense is part of what the change is about. It defies common sense to say that that circumstance should arise. That is unacceptable, which is why the change needs to be made.

David Cameron (Conservative, Witney)

The Minister seems to be saying that if the mythical defendant said that he had not been in trouble with the law, that would trigger the existing common-law provision that subsection (1)(g) puts into force: namely,

''evidence to correct a false impression given by the defendant''.

If the defendant gave a false impression by saying that he had not been in trouble with the law when in fact he had been cautioned, that would be covered by existing legislation.

Hilary Benn (Labour, Leeds Central)

Indeed. It was the hon. Member for Woking who expressed grievous concern that subsection (1)(g) could be used to prevent the mythical person in the dock from saying that he was a man of good character.

Dominic Grieve (Conservative, Beaconsfield)

I shall try to pull the strands together and help the Minister. We return to the point about propensity. Under the current rules, it would be entirely acceptable to rest the defendant's credibility simply on his character, as long as he has said that he has no previous convictions. If he gave a misleading impression, it might be corrected. However, those previous few cautions are likely to be dragged in under the new rules to show a propensity to violence. It is

difficult to propose coherent new rules because of what I call the poison that the propensity point introduces.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman's analysis of how the Bill would change the situation is absolutely right. He describes as ''poison'' the proposal that the jury should be allowed to hear that a person has had two cautions for acts of violence in the previous six months. I disagree. That is not poison, but information that the jury should have. The issue does relate to propensity, and it is right that the jury should be able to consider that evidence with all the other evidence. In the end, we should trust the jury to reach the right verdict.

Humfrey Malins (Conservative, Woking)

The Minister is being very reasonable. I am not too fussed about cautions, although I know that there are sometimes arguments about them. I am, however, fussed about bind-overs, which have nothing to do with a criminal offence. Does the Minister accept that many people who would have received the benefit of a direction on good character will no longer do so?

Hilary Benn (Labour, Leeds Central)

That is correct. The directions will have to change. The hon. Gentleman helpfully read out the second direction, under which the court may be entitled to hear evidence of bad character if it is relevant and admissible. It will not be sufficient to direct a jury to consider bad character evidence only in relation to credibility because of the way in which it was admitted, when it clearly relates to propensity. Hence my argument that juries should be trusted to give it the weight that it deserves.

As has been recognised, the other difficulty of the amendment is that it would greatly restrict the relevant evidence that could be presented in court. The most routine application of the provisions may involve previous convictions, but other bad character evidence can have high probity value. Under the hon. Gentleman's amendment, if a defendant were on trial for numerous similar offences arising from independent allegations, the evidence of one camp could not be used to support another, no matter how relevant, as the defendant would not have been convicted of that conduct. Instead, the jury would be directed to consider all the cases completely separately. Cases such as this represent an important part of the similar fact rule, so a restriction such as that proposed by the amendment would be a highly retrograde step, as highlighted by the cases of Boardman or DPP v. P, which were landmarks in the development of law on bad character evidence.

It is remiss of me not to have paid tribute at this late stage to my extremely able officials who have supported my ministerial colleagues and me on the Bill. For the education of the Committee, they have gone back even further and have drawn my attention to the case of Makin, which is the foundation of much of the current law in this area. The case involved a charge of murdering a baby. Evidence that the bodies of 13 other babies had been found buried in the garden of the defendant's house and previous properties was admissible to rebut a defence of accidental death, yet the defendant had not been convicted of any offence in connection with the further 13 babies. That evidence would be excluded by the hon. Gentleman's

amendment. On reflection, he probably will not press the amendment to a Division.

I turn now to amendment No. 471, to which the hon. Member for Somerton and Frome spoke. That amendment would insert the general requirement that evidence of a defendant's bad character should be of direct relevance to the issues in the case. We do not agree that that would helpful. A requirement for relevance to the issues is already clearly referred to in the various heads of admissibility, where that issue is to the fore. For instance, it is mentioned explicitly in paragraphs (e) and (f)—evidence that is relevant to issues between prosecution and defence and between co-defendants. It is the basis for paragraph (d)—the admission of convictions for the same or similar offences because those convictions already have the relevance that the amendment seeks to clarify. Where they do not, they are capable of exclusion under subsection (3).

On the other hand, the amendment would cause some confusion in the case of explanatory evidence. For example, clause 85 requires the evidence to be such that without it the court or jury would find it impossible or difficult properly to understand other evidence in the case. It is not clear what a requirement for direct relevance would add in those circumstances, other than confusion as to whether the evidence needed to meet some other, further requirement. There might also be difficulties with describing corrective evidence or evidence admissible in consequence of attacking a witness or other person as directly relevant to the issues in the case.

None the less, the admission of such evidence serves a valuable function. It ensures that the jury receives a balanced picture of the character of the defendant if he tries to give a misleading impression of himself or to further his case through attacking a witness. In those circumstances, the bad character evidence is of clear value to the proceedings, and there are sound reasons for enabling it to be admissible.

The amendment reflects the concern that irrelevant bad character information should not be adduced. I welcome that. However, subsection (3) makes ample and appropriate provision to ensure that evidence with no or little probative value that is otherwise likely to be prejudicial to the defendant is excluded. We believe that that strikes the right balance for admission of such evidence, rather than the blanket requirement of direct relevance, which I think would tend to confuse.

Humfrey Malins (Conservative, Woking)

If you think my arguments have been good so far, Mr. Cran, you should hear the later ones. It is important that we make progress on the clause.

My hon. Friend the Member for Beaconsfield (Mr. Grieve) was right to say that the Minister would gain higher esteem—he already has our affection—if he considered giving the same protection in relation to paragraph (g) as is afforded to other matters by subsection (3). We would be terribly pleased if he did. The Minister's response did not satisfy me entirely, but we have other matters to consider. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 472, in

clause 84, page 51, line 30, leave out

'admissible if, but only if'

and insert 'not admissible, unless'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following:

Amendment No. 436, in

clause 84, page 51, line 30, after 'admissible', insert

'without leave of the court'.

Amendment No. 437, in

clause 84, page 51, line 31, at end insert

', or

(aa) it is relevant to a matter in issue between the defendant and a co-defendant'.

Amendment No. 438, in

clause 84, page 51, line 34, at end insert—

'(1A) In criminal proceedings evidence of the defendant's bad character is admissible with leave of the court if it is relevant to a matter in issue in the proceedings and—'.

Amendment No. 439, in

clause 84, page 51, line 41, leave out paragraph (f).

Amendment No. 440, in

clause 84, page 51, line 45, leave out 'subsection (1)' and insert 'subsections (1) and (1A)'.

Amendment No. 441, in

clause 84, page 52, line 1, leave out '(d), (e) or (h)' and insert

'(b) or (aa) or (1A)'.

Amendment No. 367, in

clause 84, page 52, line 1, after '(e)', insert ', (f), (g)'.

Amendment No. 368, in

clause 84, page 52, line 1, leave out

'on an application by the defendant to exclude it'.

Amendment No. 442, in

clause 84, page 52, line 1, at end insert

'application for leave to admit it, or an'.

Amendment No. 443, in

clause 84, page 52, line 5, after 'to', insert

'admit evidence under subsection (1A) or'.

Amendment No. 369, in

clause 84, page 52, line 8, at end insert—

'(4A) Except where subsection (1)(a) applies, evidence of the bad character of the defendant must not be given without the leave of the court.'.

Amendment No. 447, in

clause 88, page 52, line 41, leave out '(f)' and insert '(aa)'.

Amendment No. 448, in

clause 88, page 53, line 7, leave out '(f)' and insert '(aa)'.

Amendment No. 450, in

clause 89, page 53, line 39, leave out 'is admissible' and insert 'may be admitted'.

Amendment No. 462, in

clause 94, page 55, line 38, leave out 'admissible' and insert 'to be admitted'.

David Heath (Liberal Democrat, Somerton and Frome)

This is a desperately important group of amendments. The nub of our argument on clause 84 will probably take place during our debate on this

rather extensive string of amendments. I do not intend to address the precise outcome of the amendments tabled by the hon. Member for Beaconsfield, although I shall deal with the issues raised. This is an intricate and interlocking series of amendments, and if I were to intrude on some of them, I might get hopelessly lost.

I shall start with amendment No. 472. We have already debated the problem that the previous presumption that evidence of bad character will not be adduced as evidence at a trial except in certain specified circumstances in which it is in the interests of justice has been reversed. The Minister has been open about it. He said in an earlier debate that the view of the Government was that the polarity of the presumption should be reversed, and that is what the Bill does.

I have yet to hear an argument for that reversal. The Minister merely asserted that that was the Government's view. We have already heard that others, who are much more expert in the area than I, have looked at it and, although they saw no reason to reverse the presumption, saw a strong argument for codification. We have all accepted that that is helpful, as is making the provisions more explicit.

What is the effect of that reversal? There is a philosophical aspect to it: a fair trial is dependent on irrelevant material—including the background of a defendant—not being adduced unless there are exceptional specific reasons for bringing it forward. That includes previous misconduct or misbehaviour that has not led to conviction, which we have already debated. There are times when such information is necessary for a jury to reach a satisfactory conclusion, but they should be the exception, not a presumption from the start. Similarly, previous acquittals should not be a means of establishing guilt, unless there are specific reasons for bringing forward material from such acquittals—which is dealt with as an exceptional circumstance within the Bill.

Those who are concerned about the issue, outside Parliament as well as on this Committee, fear that by reversing the polarity, we are in danger of eroding the presumption of innocence, albeit we have not yet done so. We must take the matter seriously. That is why the amendment turns the material into its opposite and reciprocal form. It does not change the provisions, other than to say that such evidence would not be admissible unless the circumstances were satisfied. That is the philosophical view in terms of jurisprudence.

There is also a practical argument. What will happen in court when the prosecution bring forward such evidence and it is challenged by the defence? One of the arguments for the introduction of the Bill, and for the Government's general attitude to the matter, is to speed up and make more efficient and effective the judicial process. However, because of the terms in which the Bill is couched, it will have the reverse effect. It will slow things down because it starts from the presumption that evidence will be admitted. If such

evidence is challenged by defence lawyers, it has to be considered before anything else can happen; that will slow matters down.

Consider what will happen in a magistrates court. Magistrates determine both law and fact. Therefore, they have to hear applications in the first instance, in order to decide whether the evidence is admissible. If they properly decide, under the terms of this and subsequent clauses, that it is not admissible, they will have to remove from their minds all recollection of the previous convictions or evidence of bad character before determining the guilt or otherwise of the defendant. That puts magistrates in a difficult position, but what does it do in an either way case? If I were a defendant, or advising one, I would say, do not go for the magistrates court option. As a result, more elective trials will turn up in the Crown courts. That will further clog up the system, cost more, take more time and achieve exactly the reverse of the reform of the judicial system that the Minister wants.

A rare defence counsel will not object to that sort of evidence being adduced. The capacity and the mechanism are available, so counsel would no doubt feel remiss in their duty if they did not do so; the defendant would certainly feel inadequately served by a defence counsel who did not mount such challenges. Unintentionally, but almost inevitably, a blockage has been built into the system. It is avoidable if one starts from the opposite polarity. I hope that the Minister will consider that seriously.

Sylvia Hermon (UUP, North Down)

I should preface my remarks with an apology. I am, for want of a better expression, double booked this afternoon, because I had to serve on the Standing Committee considering the order whose short title is the Access to Justice (Northern Ireland) Order.

I draw the attention of hon. Members to a printout from the website of the Lord Chancellor's Department. It is about research carried out in 2000 by Professor Sally Lloyd-Bostock on the effects on magistrates of learning that a defendant has a previous conviction. I drew this to the Minister's attention on Second Reading, and he kindly replied. It says:

''The results showed clearly that the magistrates' ratings of likely guilt were significantly affected by information about the defendant's prior record.''

Similarly, it says:

''Most magistrates thought that neither magistrates nor juries should learn about previous convictions until after the verdict, and felt that the information was dangerously biasing.''

Would the hon. Gentleman like to comment?

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the hon. Lady. I sympathise with her for being double booked. I missed considering that statutory instrument due to my duties here, and I am glad to hear that it was in safe hands. Her point is fundamental; I agree entirely. With that clear evidence from magistrates, it is hard to understand how the Minister can assert that the process will result in a fair trial system.

That point will not be lost on defence counsel up and down the country. Either way trials will be bound to go to the Crown court because the view will be that it will be possible to express views in that arena rather

than in the magistrates court, where the judgment of the magistrates is bound to be affected, irrespective of whether the evidence is admissible, because they have had to hear it first in order to determine whether it is admissible. That is crucial: as a result of the mechanisms proposed in the Bill, magistrates will not hear just that which is relevant or of value in a case, but that which they have determined to be irrelevant and of no value.

Amendment No. 367 returns to the point raised by the hon. Members for Witney (Mr. Cameron) and for Beaconsfield in the debate on the previous group of amendments. I shall not say that the safeguards that apply are eminently sensible because we have criticisms of the entire structure of the clause. However, they are necessary in the context of the clause's architecture. Therefore, I find it inexplicable that they do not apply to paragraphs (f) and (g).

Are we no longer interested in the prejudicial effect on the fairness of the proceedings, when those are the grounds on which the matters are adduced? Of course we are, and I assume that the Minister is too. He must feel that the matter is dealt with elsewhere in the Bill. It seems an extraordinary exclusion. Some of the grounds under subsection (1) to admit evidence of the defendant's bad character are perfectly sensible, but those are challengeable and may have a strongly prejudicial effect on a defendant's interests. Therefore, the same safeguards should apply.

I move on to amendment No. 368. Why should the defendant have to apply for exclusion in the first instance and not the court? Should not the court, in judging the admissibility of the evidence, consider whether the evidence would have such an adverse effect on the fairness of proceedings that it should not be admitted? Would the court not be entirely failing in its duty to the defendant if it did not make that consideration? If so, why should it require the defendant's application to trigger that elemental part of the consideration of the court in determining whether to admit evidence?

Amendment No. 369 takes us back to our old friend equivalence. If we are to have equivalent structures and procedures, both for the defendant and for other witnesses in the trial, why is that provision included under clause 83 but absent under clause 84? Should that equivalence not be explicit in the legislation?

I hope that I have explained sufficiently the reasoning behind my amendments. I shall listen with interest as either the hon. Member for Beaconsfield or the hon. Member for Woking explain their complicated nexus of amendments. With respect to the hon. Gentlemen, I shall be more interested to hear the Minister's reply on what is a fundamental issue.

Dominic Grieve (Conservative, Beaconsfield)

I may owe the Committee an apology for what has happened to this group of amendments. It was perhaps inevitable.

The hon. Member for Somerton and Frome has spoken to several amendments, some of which are shared. They are on two key issues, one of which is symbolic, but nevertheless important. The issue is the question of changing the presumption into one of admissibility, whereas previously the presumption was

against it. I share entirely the sentiments that he has expressed on the matter, and can see no good reason to change the presumption, even if there might be an argument for altering the exceptions. The matter is rather symbolic, because even if the amendment was accepted, it would not make a huge difference to the tenor of the Bill. However, Parliament's role is partly to send out messages. Indeed, we are told all the time that things must be done symbolically. That is why we banned handguns, which was totally symbolic. However, I agree with him entirely that we should not get rid of the traditional presumption that previous character is irrelevant, even if we have some exceptions.

Amendments Nos. 367 to 369 also attempt to go to the heart of the issue, by identifying those matters on which it should at least be necessary to get the leave of the court. We have already had a debate on that. The protection of the court in those categories would already be a powerful reassurance that the new provisions will not be abused. That worries me very much, although the Minister has already heard my argument—I do not want to repeat it—and will have a chance to respond to it.

If members of the Committee have read the briefing documents that have been dropping on to their desks, they will know that the Bar Council came up with a complicated set of amendments—the Minister will therefore know the derivation of a large number of the amendments—that presented an alternative structure. That is far more than a probing amendment. I tried to make my way through the labyrinth of that document. I cannot say that the explanatory notes were necessarily the best, although I feel that I followed what was trying to be achieved. There was enough commendable material there that it should have been put before the Committee for consideration in its totality.

For the sake of saving time, it would not be useful to run through every amendment. If the Minister thinks that there are flaws in the proposals, he can doubtless pick up the matter and develop it further, as can any other hon. Member. The thrust of the amendments is that clause 84, as amended—it would effectively be rewritten—would subject most categories of evidence of a defendant's bad character to a requirement of prior leave. That would achieve what was sought slightly more crudely with amendment No. 471, for which I argued. The requirement would not apply to evidence falling within subsection (1)(a) or (b), because they cover matters on which the defendant has either consented to, or offered, the evidence.

There is also an issue in relation to subsection (1)(f), which says that the evidence of bad character is admissible if

''it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant''.

That position needs to be protected, because there is a basic rule that a co-defendant should not be handicapped in his defence by being unable to cross-examine. That too is therefore preserved, but in a

slightly modified form. Instead, evidence in those categories, other than evidence admitted by agreement, will remain subject to the defence right to apply to exclude, as provided in subsection (3). We discussed that in the previous group of amendments.

Then there is the issue of the test to be applied in deciding whether the evidence should be admitted. The amendments seek to do two things. First, there will be the overarching fairness test, as provided in subsection (3), which refers to the right to exclude the evidence if it

''would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.''

In addition, leave could not be given unless the evidence met a threshold test of relevance to an issue in the proceedings, which would provide an extra level of protection. In many cases—this brings us back to some points that we have argued previously—issues such as a propensity to commit an offence can become relevant only if the evidence is of such a nature and quality as to suggest propensity. Courts will on the whole be reluctant to go down that road.

If one were to follow the Bar Council's amendments, one would still end up with a codified package in relation to when evidence of bad character against a defendant can be admitted. However, there would be a much better set of protections on the admissibility of that evidence, which would therefore be better than what is proposed in the Bill. In a nutshell, that is what the amendments, complicated though they might appear, are all about. I should be interested to hear the Minister's response to that. If there are details in that scheme that he finds unworkable, I should be interested to know which they are, so that the Committee can understand why he prefers his own version to that which the Bar Council has proposed.

Hilary Benn (Labour, Leeds Central)

We are dealing with three main questions. First, should the approach be inclusionary or exclusionary? Secondly, should leave be applied for, for bad character to be admitted? Thirdly, to which categories should the safeguards of subsection (3) apply, in respect of subsection (1)? I shall try to address each of those in turn.

Amendment No. 472, which the hon. Member for Somerton and Frome moved, appears to introduce a small linguistic change, but, as he acknowledges, the issue is about a difference of view on the approach to be taken. The Bill's drafting is quite deliberate. The substantive issue is that the amendment would make a general rule for a defendant's bad character exclusionary, rather than inclusionary, which is the Government's approach. At present, the law assumes that such relevant evidence should not be heard unless the hurdles are overcome. We propose a different starting point.

Sylvia Hermon (UUP, North Down)

Will the Minister reassure me that we are not standing the presumption of innocence on its head? That is guaranteed by the European convention on human rights. The Minister kindly wrote to me on 20 December, and I was most concerned that he said that the starting point for the

Government was to bring as wide a range of evidence against the defendant as possible, and then narrow that down. That struck me as turning the presumption of innocence completely on its head.

Hilary Benn (Labour, Leeds Central)

I hope very much that I can offer the hon. Lady the reassurance that she seeks in relation to the presumption of innocence. Nothing in the Bill changes that at all. In one of our earliest debates, I told the Committee that the presumption of innocence remains the bedrock of our criminal justice system. The clauses do not change that in any way—they seek to assist courts and juries in reaching a decision.

In response to the earlier debate, I gave examples that support the argument for the change. Members of the Committee might be interested to hear the comments of a High Court judge, as an example. In The Times, on 3 December 2002, Dame Heather Hallett commented on a horrific murder case in which a Cardiff woman in her 20s was stabbed 81 times. She said of the defendant:

''He has previous . . . for using a knife, for beating people. It's a classic case of where you might argue that previous convictions should be admitted to the jury. The more I sit as a judge, I think that we trust juries with so many important decisions, why not a defendant's background? It's something I've changed my mind about since I was Counsel.''

That is what one judge said in the light of her experience. For reasons that I gave when we discussed clause 81, the Government's view is that there is a need for a fundamental rethink. That was also the view of the Law Commission, although I accept that what the Government are proposing is not entirely what the Law Commission recommended. It was also Sir Robin Auld's view.

At the heart of our proposals is the concept that the criminal justice system should be more trusting of fact finders to assess relevant evidence, and that requires the new inclusive framework.

Current law means that it is unlikely that a jury will hear that a person who is charged with an offence has been convicted of that offence or similar ones in the past, no matter how frequently that may have been. We do not believe that that represents the correct approach. We do not think that juries cannot be trusted to assess that evidence in the context of the other evidence being presented in the case. No case will rest on evidence of previous misconduct alone. However, we do not believe that juries, when assessing all the evidence in the case, should be denied information that has a clear bearing on the issues, unless there is a good reason to do so.

Dominic Grieve (Conservative, Beaconsfield)

Why does that information have a clear bearing on the case? Unless there are circumstances in the case where it amounts to similar fact, how will simply telling the fact finders that a person has previously committed similar categories of offence help them to reach a conclusion? What should that information do for them as they consider the evidence?

Hilary Benn (Labour, Leeds Central)

Let me answer the hon. Gentleman's question by reflecting momentarily on the only experience that I have had of serving on a jury. I was assigned to a case in which the defendant was charged both with burglary and with handling stolen goods that were the proceeds of that burglary, which

had taken place earlier the same day. The defendant had been found in the back of a taxi with those goods on his person. He pleaded not guilty to both charges.

In my opinion, no evidence was advanced by the Crown Prosecution Service that demonstrated that the defendant had carried out the burglary. The explanation that the defendant gave for having the proceeds of the burglary on his person—credit cards and other items—was that someone in a pub had sold or given them to him. That was his defence.

Halfway through the trial the defendant changed his plea—he pleaded guilty to the handling of stolen goods, although retained his not-guilty plea to the charge of burglary. We, as a jury, were not able to reach a verdict because of the change of plea, and at that point we discovered that the defendant had eight or nine previous convictions for burglary.

Reflecting on that personal experience, and considering it in relation to the clauses under discussion, I believe that even had I known that that defendant had previously committed eight or nine burglaries, that would not have persuaded me to convict him on the burglary charge, because no evidence was advanced by the Crown Prosecution Service to demonstrate that he had committed that particular burglary. However, returning to that very unlegal concept of common sense, that knowledge would have assisted me as a juror in reaching a judgment about whether I thought his explanation for being found with the proceeds of the robbery that had taken place earlier that day—in Ealing, I believe—was credible or not. That evidence was not adduced, however, and we never got to hear it while considering the case.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has picked a singularly poor example. The evidence would probably have been admissible under section 27 of the Theft Act 1968, which relates to proof of guilty knowledge on the basis of evidence of the possession of other stolen property or a previous conviction.

Hilary Benn (Labour, Leeds Central)

That is a very interesting point, but the evidence was not adduced. The point is that the provisions try to effect a shift in the system. It is all very well for the hon. Gentleman to say that the evidence could have been brought in, but the fact is that it was not. That is why the Law Commission and Sir Robin Auld said that the present system is haphazard and unclear, and that people are not sure how it works. We therefore need to bring clarity into the system.

Let me return to the case in which I was involved. Legally trained members of the Committee might find this a rather quaint notion of common sense, but I think that the evidence that we are discussing would have been relevant to the jury's consideration of the verdict, had the defendant not changed his plea halfway through.

Sitting suspended for a Division in the House.

On resuming—

Hilary Benn (Labour, Leeds Central)

I had just said that no case will rest on evidence of previous misconduct alone, but the important considerations are how relevant the evidence is to determining the issues in the case and what light it casts on them. To ensure that the magistrates and juries have the evidence that they need to deliver a verdict, the starting point needs to be whether a defendant's bad character is relevant to the issues in the case. It should, like other evidence, be capable of being heard. There may be reasons for excluding it and the provisions need to be made for that. However, exclusions should occur only where there is good reason for doing so, such as where the probative value of the evidence is outweighed by the prejudicial effect. That is a very important protection. In effect we wish to bring about a cultural shift such as I referred to earlier.

I turn now to the impact that the disclosure of a defendant's record may have. Reference was made to Professor Lloyd-Bostock's research for the Law Commission. It is fair to say that it did not demonstrate that jurors and magistrates are overwhelmed by the admission of bad character evidence. Indeed, where jurors heard evidence of a dissimilar conviction, they were less likely to find the defendant guilty, and the jury were not more likely to find the defendant guilty when they knew of an old conviction. The research showed that where jurors and magistrates were aware of a recent similar conviction they were more likely to find the defendant guilty.

However, as the Law Commission itself recognised, such a finding is consistent with attaching probative value to the evidence, rather than prejudice. There is an interesting discussion of that very point in the Law Commission report, which I would commend to hon. Members who are interested.

Sylvia Hermon (UUP, North Down)

To be fair to Sally Lloyd-Bostock and the research that she carried out for the Lord Chancellor's Department, the report said that magistrates were ''significantly affected'' by information about the defendant's prior record. There was no suggestion that they were overwhelmed. That was not the finding and I would not want it to be thought that that was suggested in the report.

Hilary Benn (Labour, Leeds Central)

I did not in any way wish to attribute that analysis to Professor Lloyd-Bostock. The point that I was trying to make—the Law Commission touched on this—is whether we think that the evidence of that research is sufficient to say that none of this should be done. My response is, no. Clearly it is highly relevant to the protection applied by subsection (3), but in the end we should trust the juries.

Subsection (3) is central to the consideration of the clause. The test for the court to apply is designed to reflect the existing position under the common law as section 78 of the Police and Criminal Evidence Act 1984 does. Under that, the judge balances the probative value of the evidence against the prejudicial effect of admitting it and excludes the evidence where the prejudice exceeds the probative value. The Government's intention is for the courts to apply the fairness test in this Bill in the same way and that is the intended effect of the clause. In applying the

test to evidence of a conviction for the same offence, or one of the same category, the court will balance the probative value of the convictions, that is, the extent to which they are relevant to the case—hon. Members have been concerned about relevance—against any prejudicial effect of admitting them.

David Kidney (Labour, Stafford)

Like the hon. Member for Witney, I have thought carefully about what to say on the clause stand part debate. Will we ever reach it? I should say that I still prefer the Law Commission's draft Bill in its entirety. Does the Minister accept the Bar Council's argument that sometimes prejudicial evidence will come out before the defendant knows it and before there can be an order to exclude it? It could come out in cross-examination of the defendant.

Hilary Benn (Labour, Leeds Central)

The trial judge has ultimate responsibility for ensuring that the proceedings are fair. Hon. Members have expressed the concern that the test applied in clause 84(3) does not apply across all the heads of admissibility set out in clause 84(1). That is because such a power is not appropriate in all the circumstances that we envisage in which evidence of a defendant's bad character should be admissible.

Amendments Nos. 367 and 441 would amend clause 84(3). First, I should like to deal with matters in issue between the defendant and the prosecution. Under common law, if evidence of the bad character of a co-defendant is relevant to the defendant's defence, it may be adduced and the court has no discretion to exclude it, although the test of relevance is strictly applied. That is because a defendant should not be inhibited—that point was acknowledged by the hon. Member for Beaconsfield—in the presentation of his or her defence. The Law Commission considered whether that was the right approach in its 2001 report and concluded that no discretion to exclude should be introduced. It quoted the views of Professor Jenny McEwan that there were

''more factors to balance than that of prejudice against probative value. It must be unfair to deprive the co-defendant of evidence relevant to his defence, whatever the effect on the defendant might be. Hence it seems that the current rule is the right one, that if a co-defendant wants to adduce evidence of previous misconduct by the defendant, the only test for admissibility is one of relevance.''

The Law Commission accepted that argument. It pointed out the consequent importance of ensuring that only a co-defendant could take advantage of this provision. It also recommended that evidence should meet a test of enhanced relevance and that evidence solely concerning a defendant's credibility should be admissible only where a defendant had undermined a co-defendant's defence. All of these are important limits on a defendant's ability to adduce evidence of a co-defendant's bad character, and they ensure that that evidence is confined to relevant issues in the case. However, beyond that, we agree with the Law Commission that there should be no general discretion to exclude evidence of bad character on issues between defendants.

Clause 84(1)(g) concerns evidence to correct a false impression. On this the Law Commission recommended that probative value and prejudicial

effect should be considered. However, we believe that there are simpler ways of achieving the right effect. The mischief being tackled by clause 84(1)(g) is the jury's being left with a misleading impression of a defendant as result of an assertion for which he is responsible, such as a false claim to be of good character. Evidence of his bad character is then admissible to correct this impression. The Government believe that it should not be a foregone conclusion that the giving of a misleading impression should result in the admission of bad character evidence to correct it. Instead, the defendant should have an opportunity to correct the impression himself or to dissociate himself from it, thus ensuring that the jury are aware that he lays no claim to the impression. If that is so, there should be no question of evidence of his bad character being admitted, and clause 89(3) now provides for such circumstances. However, if the defendant allows a misleading impression to persist, it will be appropriate and fair to enable evidence of bad character to be given to correct it. Critically, it should only be admissible to the extent necessary to correct such a false impression. That is explicitly provided for in clause 89(6). Evidence that is more prejudicial than probative is unlikely to meet that test. However, it is to be preferred as it more appropriately focuses on the proportionality of the evidence to be admitted.

As far as evidence to be adduced by the defendant himself is concerned, the defendant may choose for tactical reasons to introduce his own bad character. For example, on a rape charge, he might argue that he might be a burglar but he is not a rapist. Alternatively, he might wish to make a clean breast of his record at the outset rather than face the possibility of its being revealed in cross-examination. Were a defendant to choose to adduce evidence of his own record, it would not be appropriate for a court to inhibit the presentation of his case by excluding that evidence.

Finally, I mention explanatory evidence. That is currently admissible outside the similar fact rule and is not, therefore, subject to a balance between probative value and prejudicial effect. The test that we have set out is that without the evidence, the court or jury must find it impossible or difficult properly to understand the case. If that test is met, it is right that the evidence should be admitted; otherwise, we shall be asking the jury to reach a verdict with one hand tied behind its back.

I turn to amendments Nos. 368 and 436 and associated amendments. There is little between the two sets of amendments. One significant difference is that amendments Nos. 368 and 369 would require a defendant to seek leave before he could give evidence of his own bad character. We do not propose that he should be restricted in adducing evidence of his own misconduct for the reasons that I have given, and it is not clear on what basis the court would refuse to give leave. That makes the requirement academic if the defendant wishes to bring that evidence.

Amendment No. 442—which is in the second set of amendments—would also preserve the scope for a defendant to apply for certain evidence of his bad

character to be excluded, as well as requiring the leave of the court before such evidence could be given. However, the substance of both sets of amendments is the question of whether leave should be necessary. That would be undesirable, for a number of reasons. First, the Bill is intended to send a clear signal that relevant evidence of a defendant's bad character is to be admitted as widely as possible. The law assumes that such evidence should not be adduced except in rare circumstances. We wish to put it on a more realistic footing, and not to deny the courts and juries relevant evidence—hence the cultural shift.

Moreover, by making the law clearer and more certain in its application, particularly by providing a clear and straightforward route for the admission of convictions for the same offence, we anticipate that the sort of evidence of bad character that will be admissible in future will be far more predictable. The admissibility of a range of evidence will be safely predicted and little sensible objection could be made to it. That should discourage the kind of legal argument about which the hon. Member for Somerton and Frome expressed concern. It might be undermined if courts were always asked to consider the issue of admissibility.

The amendment does, however, reflect a legitimate concern that defendants should be given an adequate opportunity to apply for evidence to be excluded before such evidence is given. However, existing practices and procedures will ensure that defendants have notice of an intention to rely on such evidence, enabling them to apply for it to be excluded. In the case of prosecution evidence, the requirement for the prosecution to provide the defence with a copy of their case in advance will ensure that any intention to rely on a defendant's record or other previous—

Humfrey Malins (Conservative, Woking)

On a point of order, Mr. Cran. Can you do anything to protect the Committee from the appalling situation in which we cannot, in the time available, debate many vital clauses, because of a knife that has been put down by the Government? Is there any way in which you can come to our rescue?

James Cran (Conservative, Beverley and Holderness)

Absolutely none.

Hilary Benn (Labour, Leeds Central)

The prosecution provide the defence with a copy of their case in advance. That will ensure that any intention to rely on a defendant's record or other previous misconduct is brought to his attention. Co-defendants will be required to give notice under the rules of court anticipated in clause 95. For cross-examation it is worth noting that the Criminal Evidence Act 1898 under which a defendant may currently be cross-examined about his bad character does not require leave to be sought before such questions are asked.

It being ten minutes to Six o'clock, The Chairman put forthwith the Question already proposed from the Chair.

Amendment negatived.

The Chairman then proceeded to put forthwith the Question necessary to dispose of the business to be concluded at that time.

Question put, That clauses 84 to 97 stand part of the Bill, and that the schedule be the fifth schedule to the Bill:—

The Committee divided: Ayes 12, Noes 8.