Criminal Justice Bill

House of Commons, 2 April 2003.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 52, in page 4, line 30, leave out Clause 5.

Clause 5 amends the Police and Criminal Evidence Act 1984 in an important way by increasing from 24 to 36 hours the period for which a person may be detained without charge at a police station while a case against him is investigated in the case of any arrestable offence. That is a very substantial change to current practice proposed by the Government.

In proposing an Opposition amendment to delete the provision, I hope that the House will bear with me while I examine the history of this matter and current practice, before assessing the impact of the change. As matters stand now, the 24-hour rule exists for the protection of the individual who has been arrested. It is undesirable per se for any person to be detained without charge at a police station for any excessive length of time, except for the time reasonably required to investigate the offence for which the person has been brought in. Twenty-four hours has long been considered an appropriate period for such detention.

That said, there have already been, and remain, exceptions to that existing rule. In the case of a serious arrestable offence, the period may be increased by the police superintendent to 36 hours. That covers a substantial number of offences that most people would accept warranted a long period of investigation: including treason, murder, manslaughter, rape, kidnapping, incest with a girl under the age of 13, indecent assault, offences under the Customs and Excise Management Acts, causing explosions, intercourse with a girl under the age of 13, possession of firearms with intent to injure, use of firearms and imitation firearms to resist arrest, carrying firearms with criminal intent, hostage taking, hijacking, torture, causing death by dangerous or careless driving, endangering the safety of aerodromes, hijacking of ships, seizing or exercising control of fixed platforms, hijacking of channel tunnel trains, seizing or exercising control of the tunnel system, taking indecent photographs or pseudo-photographs of children and the publication of obscene material.

That is a long list, tailored to make specific exceptions to the 24-hour rule in circumstances that Parliament has considered in the past justify making such exceptions. The question arises as to the basis for changing to a far more general rule, which would allow detention of up to 36 hours for all arrestable offences. In the run-up to the Bill's introduction, the background intention for the change was discussed. The Home Affairs Committee considered the matter in its pre-scrutiny report, albeit a report that it acknowledged was rather hurried in respect of the time allowed for consideration. The Association of Chief Police Officers told the Committee that the initial detention period of 24 hours could provide insufficient time in which to conclude the investigative process and charge a detained person because of delays elsewhere in the custody process—for example, in obtaining the services of an appropriate adult, police surgeon or interpreter, or when a suspect is initially unfit for interview because of alcohol or drugs. It felt that delays linked to the provision of legal advice could also put pressure on the custody clock.

Another argument was that some offences did not fall into the category of serious arrestable offences, but many people nevertheless regarded them as being serious—burglary and robbery, for example. However, there is already a saving clause in that such offences may become serious if their intrinsic nature—the amounts of money obtained or the specific circumstances—justifies it, in which case a police superintendent can deem that they fall into that category, though it can be challenged in court. However, I am not aware of any successful challenges to such procedures.

That provides the background, and I assume from what was said in Committee that it was the reasoning behind the Government's view that the Bill should amend certain provisions in the Police and Criminal Evidence Act 1984. The problem is that a moment's scrutiny of the consequences conclusively reveals that some of the offences to be included in the highly serious category will surprise many people. Trespassing on an aerodrome, for example, would fall within the category that allows detention for 36 hours. The House therefore needs to ask whether the blanket change is justified in preference to inserting further exceptions in PACE.

The Minister will recollect that we abstained on this matter in Committee in order better to reflect on what he had to say. Our approach is pragmatic. However, the more we reflect on it, the more unconvinced we become of the merit of the proposal. The case was powerfully made in Committee that the extended powers to detain up to 36 hours are rarely used. Indeed, a Home Office report surveying how many times individual police forces detained up to 36 hours in a 12-month period revealed that the Avon and Somerset constabulary, Cumbria, Dorset, Durham, Humberside, Norfolk, Nottinghamshire, Staffordshire, Dyfed Powys—I remind the Minister that that force has the highest clear-up rate of any force in England and Wales—and the North Wales police had never used it. The Metropolitan police, who one might think likely to use the power frequently because of the level of serious crime in the capital, had used it only seven times.

As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) pointed out in Committee, one police force, Gwent, seemed to have a particular predilection for using this method of detention up to 36 hours, having used it 192 times in a 12-month period.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I did point that out in Committee, as the hon. Gentleman has generously acknowledged. Subsequently, however, I received a letter of correction, showing that the Gwent figures had been inaccurately reported. The one example demonstrating that one particular force had often used the excessive power has proved to be aberrant, so no force appears to have used it frequently.

Dominic Grieve (Conservative, Beaconsfield)

I am extremely grateful to the hon. Gentleman for clearing that up. While studying Hansard, I noticed that the Minister had certainly not corrected that matter. I did find it extraordinary that one police force should use the power so often. The hon. Gentleman's clarification reinforces the point that the vast majority of police forces have no need to use the extended power, and those that have used it have done so only rarely.

As the Minister knows, 36 hours is not always the cut-off point for serious offences under current arrangements. It is already possible to continue well beyond 36 hours—in fact, for up to 92 hours—if application is made to the court. Generally speaking, that is considered quite long enough to carry out full investigations.

Another issue raised in Committee was the question of how things were done elsewhere. Clearly, comparisons with other countries may be helpful in ascertaining whether the police need the 36-hour power. The Minister wrote to the Committee helpfully setting out the initial detention periods in different countries—and the correspondence makes illuminating reading. In respect of Australian states, the figures show that in New South Wales, the period of detention is four hours. In Queensland, it is eight hours, which can be extended for a further eight hours with a magistrate's approval. In South Australia, the period is four hours, with a four-hour extension granted by a magistrate. In Canada, the period is 24 hours, with a possible extension from a justice of the peace. In Denmark, it is 24 hours, with a 48-hour maximum, to be extended by the court. In Finland, the period is 24 hours. In France, it is 24 hours, with an extra 24 hours possible on the stamp of the public prosecutor. In the Netherlands, the period is six hours, excluding the hours between midnight and 9 am, and there can be an extension of another six hours thereafter. In South Africa, the period is 48 hours, and in Spain it is 72 hours. In Sweden, it is six hours, with a six-hour extension.

I do not find the Spanish model an especially happy one, as I suspect that it may be a carryover from a period in Spain's history when it enjoyed a rather authoritarian form of Government.

Chris Bryant (Labour, Rhondda)

It was not Franco, in fact.

Dominic Grieve (Conservative, Beaconsfield)

I wait to hear from the hon. Gentleman, who intervenes from a sedentary position. I do not know the answer to his contention, but the period strikes me as being very long. I note that, apart from Austria and South Africa, the proposed period of 36 hours, with the extension provided for by the superintendent, will put us in an usual category. Britain will allow detention for longer than most other countries.

I therefore return to the original question, which I wanted to ponder after the Committee debate: is the proposed period really necessary? The Minister's international comparisons, and the precise nature of the proposed change, leave me with an increasing feeling that the change is unjustified.

I hope that the House will forgive me for reading from the Minister's letter of 8 February, as I think that, in a funny way, he destroys his case as he makes it. He wrote:

"As you know, the police can currently only extend detention without charge beyond 24 hours (and up to 36 hours) in relation to serious arrestable offences. Some offences are always serious arrestable offences and these are specified in section 116 of Schedule 5 to PACE. However, section 116 also makes it clear that any arrestable offence can qualify as a serious arrestable offence if it has led to or is intended or likely to lead to certain specific consequences. For example, serious injury to any person or serious financial loss to any person.

It follows from this that there is a sense in which the proposals in clause 5 of the Bill do not add any new offences to the group where detention up to 36 hours is available. This already applies in respect of any arrestable offence if the 'consequences' test is met. What the clause does is to allow scope for extended detention in relation to any arrestable offence, whether the consequences test is satisfied or not."

That letter seems to demolish completely the Government's argument that this amendment is really necessary. The only possible use that I can see being made of the provisions allowing detention to continue beyond 24 hours is in those cases where it strikes me as likely to be totally unjustified. I am sure that the Minister does not consider that to be a desirable outcome.

The House should consider the matter carefully. Later in our proceedings, although not today, we will consider Government amendments concerning taking DNA and fingerprints from people who have been arrested and taken into police stations. As I understand it, the purpose is to take advantage of the golden opportunity presented when someone is arrested. The police can check whether that person is wanted for, or connected with, some offence other than the one for which he has been brought in.

When I read those amendments, and then look at the proposed increase in police detention powers, I feel slightly worried that we are signing a blank cheque to the police, encouraging them to use the occasion of arrest as an opportunity to carry out trawl searches in connection with a person arrested for an offence which, although trivial—such as the theft of a packet worth 6p from the supermarket—is still arrestable. The police could then take the opportunity to find out more about that person, and detain him while those investigations are carried out.

John Bercow (Conservative, Buckingham)

My hon. Friend is mounting a forensic dissection of the Government's rather draconian and clumsy case. He has just hit the nail on the head. Should not the essence of the power to detain be that it is based on reasonable grounds for suspicion, and not on an incentive to the law—and its officers, in the form of the police—to mount unwarranted fishing expeditions on other grounds?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is right. Of course, the reasonable grounds of suspicion should relate to the offence for which the person is arrested.

I want to be realistic: I am the first to accept that there will be occasions when the police pick up a person for some minor matter and then suddenly realise that they have hit the bull's eye and that they have laid hands on someone who has committed serious offences. However, there needs to be a balance in all this, and no one has persuaded me that the Government have got it right. The Minister did not persuade me of that in Committee, although he did enough to make me willing to think further. However, he has not persuaded me that the existing powers do not adequately allow for the possibility that I have described.

The anxiety must be that, once the House gives an extra power to the police in this blanket form, the inevitable consequence will be to encourage those who are given the power to use it routinely. That is what always happens, although not as the result of some sinister intention. In contrast, at present the police must be constantly mindful of the fact that in the ordinary course of events a person has to be released within the 24-hour period.

I repeat: if the Minister can come up with compelling arguments in this afternoon's debate to justify his position and explain why the proposed power is so vital, then I am, on a pragmatic basis, open to persuasion. However, he did not succeed in doing that in Standing Committee, and his subsequent honest and forthright letter seems to damage the case yet further. The letter highlights the fact that the power is not needed.

John Bercow (Conservative, Buckingham)

In addition to the dangers that my hon. Friend has just highlighted, is there not a real prospect that a change to 36 hours rather than 24 will become the norm rather than the exception? Moreover, in respect of offences for which a 36-hour period is allowed, will not the clamour come from the voices of authority for a limit of 48 hours, or some other period that would be excessive?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is absolutely right. One anxiety expressed in some circles, and particularly in legal circles, is that as soon as the extension of the period by administrative action by the superintendent is raised routinely to 36 hours, one of the first possible consequences is that the Government start encouraging the idea that they might approve an extension of the court's discretionary powers.

Obviously, criminal cases need to be investigated fully. However, two things need to be borne in mind. The first is an issue of straight civil liberties: it is undesirable that people should be detained for excessive periods of time without charge. A look at the provisions in comparable countries in the civilised world leaves us with the impression that Britain is moving very substantially towards putting itself on the upper level of countries that allow for long periods of detention. That bothers me.

David Cameron (Conservative, Witney)

Before my hon. Friend finishes, will he deal with the Government's response to the Home Affairs Committee? They said, as an excuse for bringing in this proposal, that in many cases those detained needed medical treatment or a translator, or that there needed to be a pause while waiting for a solicitor to arrive. Does my hon. Friend agree that it should be incumbent on the police to get their ducks in a row, as it were? Would that not be preferable to changing fundamentally the civil rights of the person who has been arrested and detained?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my hon. Friend that that is the case. Moreover, in fairness to the police, from the evidence available it seems that that is what is happening. Some figures were given in Committee. We were told, and I think I have seen these figures subsequently, that 1.3 million people were arrested in a 12-month period and that there were 697 occasions on which people were detained for longer than 24 hours and not charged. We also know from Home Office research that the average period of detention is six hours and 40 minutes. Even in murder or rape cases, it is 22 hours. That does not suggest that there is some compelling problem.

Moreover, the Bill makes new provisions for bail conditions, which will make it easier for the police to interview and release someone and then get them back to the police station successfully if they have insufficient time in which to carry out investigations for relatively minor offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Again, I must update the hon. Gentleman to ensure that the record is correct. As a result of the correction by Gwent police, the total figure that he just cited—693, I think—is reduced by about a half. The total is much less significant and normal practice is well under the 24 hours, as he rightly suggests.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Gentleman and can see how the one follows logically upon the other. I thank him for pointing that out.

I ask the Minister, therefore, where the problem is. Where is the justification for doing this? I know that the hon. Gentleman is a liberal-minded man and would consider it desirable that all police investigations should be carried out expeditiously and that people should be detained for a minimum period. My professional experience suggests that the longer a person is detained in custody, the more likely it is that something will go wrong unwittingly. Being detained in a police cell is not a pleasant experience for those who have to go through it. Even though PACE sets out to protect people who are being interviewed and investigated by the police, there can be no doubt that the longer such a period of detention is, the more likely or possible it is that a person—without coercion by the police, as I am not suggesting any impropriety—may be disturbed and distressed by the experience. The quality of the investigation and its truthfulness are likely to suffer as a result. It is enormously desirable that people should not be under stress while an investigation is taking place.

For all those reasons and having reflected carefully on what was said by all parties in Committee—although at that stage we abstained in the vote—it is the official Opposition's view that the clause is unjustified. We will seek the support of hon. Members on both sides of the House to delete it, although I would be even happier to have some words of comfort from the Minister and to hear him say that the matter will be properly reconsidered, which might enable me not to press the amendment to the vote.

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief and will not repeat all the arguments of the hon. Member for Beaconsfield (Mr. Grieve) on the amendment to which my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) and I have added our names. As has been said, this matter received our attention in Committee and we have not changed our view that the Government have failed to provide a justification for their proposed change.

We must consider the purpose of the Police and Criminal Evidence Act 1984, which is protection for the citizen. We must also consider that holding someone in custody prior to charge places a limitation on their liberty for the specific purpose of questioning and investigation of an offence. First, it is incumbent on the police and the judicial authorities—the state—to ensure that that period of detention without charge is as limited as is consistent with the interests of justice.

Secondly, as the hon. Member for Beaconsfield said, the 36-hour period can already be used in serious cases as specified in legislation. The fact is that that power is rarely used. It is not considered necessary in the overwhelming majority of cases. Indeed, we have heard that the average detention time before charge is around the six-hour mark, which is not an unreasonable average. Home Office figures show that there were 1.272 million arrests with only 697 persons held for the 36-hour period. We now know that half of the latter figure came from Gwent and that Gwent police provided incorrect figures, which means that the figure was only 300 to 400, so the power is used sparingly by the police.

I would be more concerned if the police did not already have the ability to seek an extension from a magistrate. That power exists and under extreme circumstances, where new evidence is emerging or the suspect cannot be questioned owing to intoxication or whatever, the police can seek leave of a magistrates court to extend the detention period.

I am in any case wholly unconvinced by the Government's approach. If there is a concern about specific offences, it seems odd to include in clause 5 the catch-all provision of the arrestable offence under section 24 of PACE. For a start, the offences are not identical to those that most normal people would consider serious. As the hon. Gentleman said, offences that fall into that category include some that most people would not consider should require such a provision, while offences that fall outside the category would require it. For example, the charge of affray falls outside it, but that could be an offence for which the additional provision would be of value. Burglary is also a serious point of contention.

Our preferred route is that if the Minister has evidence that the police face problems with the investigation—if he has such evidence, he was careful not to provide it in Committee, or in correspondence since then—of certain offences because of the present restrictions, he should say so and we should change the list of offences for which the 36-hour period is appropriate. He has not done so. He has simply introduced this catch-all clause for "an arrestable offence".

Dominic Grieve (Conservative, Beaconsfield)

Does the hon. Gentleman agree that "an arrestable offence" includes the sale of tickets by unauthorised persons for a designated football match, touting for car hire services and the placing of advertisements relating to prostitution in the immediate vicinity of a public telephone?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right. Putting a postcard in a telephone box does not seem to me to justify 36 hours' detention without charge. The Minister will have some difficulty persuading me of the rightness of that view.

For all those reasons, we were not persuaded in Committee and voted against the provision. I was saddened that our Conservative colleagues were not able to join us in that vote but I understand that they had a reasoned approach—they wanted to wait to hear what the Minister might propose and take a view later.

Sylvia Hermon (UUP, North Down)

In Northern Ireland, we are very conscious of the fact that, whenever there is an extension of a period of detention without charge, the police officers who carried out the arrest receive an awful lot of criticism. However, clause 5 refers to "conditions"—and hon. Members should note the plural—

"to be satisfied before detention without charge may be extended from 24 to 36 hours".

The clause then changes section 42(1)(b) of the Police and Criminal Evidence Act 1984. Can the hon. Gentleman help hon. Members such as myself to make up their minds on whether we should seek to delete clause 5? Will he outline the other conditions that have to be satisfied before the extension from 24 to 36 hours can be made?

David Heath (Liberal Democrat, Somerton and Frome)

Oh dear. The hon. Lady has asked me a question and I do not have the information to answer her. She is an expert in this area and added a great deal to our consideration in Committee. I cannot answer her question but the Minister may be able to help when he replies.

Chris Bryant (Labour, Rhondda)

Notwithstanding the points that were made by the hon. Member for Beaconsfield (Mr. Grieve) about arrestable offences that would be covered by the extension, does the hon. Gentleman accept that most people would think that any offence that could be subject to a five-year term in prison could count as a serious offence that should be covered? That is what the proposed extension would mean.

David Heath (Liberal Democrat, Somerton and Frome)

First, that is not what the Government are saying. Secondly, I am not convinced that every person in this country would agree with the hon. Gentleman's contention. He is talking about holding someone for 36 hours without charge for the sort of offences that have been mentioned by the hon. Member for Beaconsfield. Does the hon. Gentleman honestly believe that people in the Rhondda are calling for a 36-hour period of detention without charge for people who may have left a postcard in a telephone box or touted for private car hire? I do not believe that that is what the general public believe. In fact, I think that they would be very concerned were Gwent police to be given that power, irrespective of whether they get their figures right in reporting to the Home Office.

Chris Bryant (Labour, Rhondda)

South Wales.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman's constituency is, of course, in the area covered by South Wales police, but he may have some knowledge of Gwent police, who are not very far away. I do not accept his or the Minister's contention that clause 5 is necessary.

Apart from my views and the views that we heard from the hon. Member for Beaconsfield, the Home Affairs Committee has considered this matter and rejected the Government's view. The Committee prayed in aid the Runciman royal commission on criminal justice, which considered this issue a decade ago and said that no change was necessary. Largely because the present provision of 24 hours was rarely used, people came to the view that an extension was not necessary.

John Bercow (Conservative, Buckingham)

I do not disagree with anything that the hon. Gentleman has said, but let us be clear that the offences cited by my hon. Friend the Member for Beaconsfield were, in every case, trivial. Does the hon. Gentleman agree that, however one divides the cake of police time, one does not change its size and that it would be almost criminally irresponsible for this House to vote to enable or oblige the police so to spend their time as to prevent them spending it much more effectively in more deserving cases?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right in principle but in practice I do not think that that would be the consequence of this clause being enacted. I trust the good sense of the police not to use their time in that way.

John Bercow (Conservative, Buckingham)

To ignore the clause.

David Heath (Liberal Democrat, Somerton and Frome)

From a sedentary position, the hon. Gentleman suggests that I trust the police to ignore it. That is precisely what I am doing. It is an otiose provision and one that we should resist. I hope that the whole House will support the amendment when it is pressed to a Division, as I hope it will be.

Hilary Benn (Labour, Leeds Central)

The hon. Member for Beaconsfield (Mr. Grieve) fully and helpfully set out the circumstances and the nature of the argument. To the best of my ability, I will try to persuade him—while acknowledging that the Conservatives did not vote against this clause in Committee, although the Liberal Democrats did—of the argument for the change suggested by the clause. Listening to both the speeches that we have heard, I detected that a case for the principle of some extension might be accepted but that there was concern about the scope. That happened in Committee and it has been reflected today.

Dominic Grieve (Conservative, Beaconsfield)

If Parliament hears evidence of a particular problem with the investigation within the 24-hour period of individual offences which cannot be put in the category of serious offences, I am prepared to be pragmatic and make an exception for them. However, the clause contains a blanket extension that will have powerful symbolic and practical consequences. I am not prepared to accept those consequences unless I can be persuaded that the blanket approach is correct.

Hilary Benn (Labour, Leeds Central)

Perhaps the hon. Gentleman will bear with me while I try to assuage his concerns. As he rightly told the House, PACE allows detention without charge for longer than 24 hours only if a serious arrestable offence is involved. As he helpfully told us, serious arrestable offences are either inherently very serious—murder, rape or kidnapping—or specific offences that produce serious consequences such as serious injury or serious financial loss.

I want to address the hon. Gentleman's argument in response to the letter that I sent him after the Committee stage. It was suggested that the way round this problem was to rely on the interpretation of the word "serious" to bring into the purview of a 36-hour detention period offences that might not otherwise be included. The difficulty with that suggestion is that it raises questions such as, "How serious is serious?" and in whose perception the offence is serious. Is it to a hardened police officer who has unfortunately had to deal with many cases, or to someone who has worked hard to save what may appear to be a small amount of money but which to them is a very large amount? To that person, theft of that money would be very serious. Rather than trying to twist the definition of "serious" in a way that would not be terribly helpful, it would be better simply to lay the thing open and—for reasons that I shall come to—say that, where the investigation requires a longer period of detention, we should permit it.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the hon. Gentleman that to pervert the sense of "serious" would not be the right way of dealing with this. That is why I hope that he will accept our argument that, if there is evidence that specific offences lead to a problem, they should be specified in a schedule to the Bill rather than being covered by the amorphous provision that he advocates.

Hilary Benn (Labour, Leeds Central)

I accept the argument that the hon. Gentleman makes; I was simply trying to protect myself against the charge that I had undermined my case in what I thought was the extremely helpful letter that I sent to him. I do not believe that I have undermined it.

It may be of assistance to the House if I read the list of offences that are not automatically serious arrestable offences but for which a person may be imprisoned for five years. My hon. Friend the Member for Rhondda (Mr. Bryant) made a helpful point about such offences. The list consists of theft, robbery, burglary, handling stolen goods, threats to kill, actual bodily harm, indecent assault, blackmail, conspiracy to defraud, counterfeiting, criminal damage and riot.

Schedule 1A to PACE contains a specific list of arrestable offences—some of which the hon. Member for Beaconsfield read out in support of his argument that the police would not, in relation to such offences, want to spend an enormous amount of time detaining people for up to 36 hours. On that list are other offences, including the carrying of offensive weapons without lawful authority or reasonable excuse; the publishing or distributing of written material that is threatening or abusive, or that could stir up racial or religious hatred; and racially or religiously aggravated harassment. I simply want to put that on record because it puts in perspective the argument that has been advanced in some quarters during this short debate that this measure is a sledgehammer to crack a nut. The offences that I described, which will now be brought within the purview of the extension that the Government propose, are quite serious nuts.

Sylvia Hermon (UUP, North Down)

With the greatest respect, I would find the Minister's argument much more convincing, and I might be persuaded to support clause 5, if, instead of reading out a long list of serious offences, he told us that a certain police force needed 36 hours. That would be helpful.

Hilary Benn (Labour, Leeds Central)

The hon. Lady anticipates the point that I am about to make.

John Bercow (Conservative, Buckingham)

Ah.

Hilary Benn (Labour, Leeds Central)

I am glad that that meets with approval. We are asked why the provision is in the Bill and whether it is just because the Government fancy extending the detention period. I am surprised that no hon. Members have drawn attention to the PACE review that was undertaken. The answer to the question, "Where does this come from?" is that it comes from the PACE review. I shall read what that had to say, because it makes the case very strongly. It states:

"The initial detention period of twenty four hours can provide insufficient time in which to conclude the investigative process and charge a detained person because of delays elsewhere in the custody process, for example: obtaining the services of an appropriate adult; police surgeon; or interpreter; or when a suspect might initially be unfit for interview for reasons of alcohol or drugs intoxication. The Review has looked at several options regarding amending the detention clock, weighing up the practicalities and attendant bureaucracies of each proposal. In addition to the measures to enhance the provision of Appropriate Adults, healthcare professionals and interpreters, the Review recommends that the initial period of detention for which someone may potentially be detained for an arrestable offence be extended from twenty four to thirty six hours, under the authority of a superintendent."

Dominic Grieve (Conservative, Beaconsfield)

I accept that that is what the PACE review said, but there seems to be a lack of evidence to back up the existence of the problem in practical terms. Indeed, the only statistics that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) was able to lay his hands on, which he quoted to the Committee, and which I have seen, rather suggest otherwise—that the police have no great difficulty in handling the 24-hour rule. That is why I asked the Minister to explain in detail something beyond simply the wishes of the Association of Chief Police Officers.

Hilary Benn (Labour, Leeds Central)

I was about to come to that having completed the quote from the PACE review.

I hope that I have dealt with the suggestion that the extension of the detention period has come from nowhere and that it is a whim of the Government.

Dominic Grieve (Conservative, Beaconsfield)

It is the wish of ACPO.

Hilary Benn (Labour, Leeds Central)

No, it is not—it comes from the PACE review, which considered a whole range of issues to do with the operation of PACE. In the judgment of those who conducted the review, there was a case for the extension.

I want to draw hon. Members' attention to the view expressed by the Select Committee on Home Affairs in its report. Although in the end the Committee was not persuaded, the report said:

"We accept that the current time limit may cause difficulties in some non-serious cases."

So the Home Affairs Committee also acknowledged that there could be a problem with the current arrangements. The point that my hon. Friend the Member for Rhondda made a moment ago is a forceful one. The hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath) are right in the statistics that they gave us. In practice, even with the current arrangements, the number of people who are detained beyond 24 hours is very small indeed. The average detention period for all cases is between five and six hours, and even for serious cases the average is less than 24 hours. That suggests that in the vast majority of cases the current arrangements work. In essence, the argument is that in some circumstances the current time limits may cause difficulties. That is why the PACE review asked us to make the change, and why the Home Affairs Committee, even though in the end it was not persuaded, accepted that in some non-serious cases such difficulties may arise.

John Bercow (Conservative, Buckingham)

May.

Hilary Benn (Labour, Leeds Central)

Indeed: may. Equally, they may not, but in circumstances where they do, we have to ask whether it is right and proper to permit, with safeguards—that is my final point—the extension of the detention period.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Before the Minister deals with his final point, does he accept that if the police were at a significant disadvantage, they could give us lots of examples of how they have been, as it were, knocked up against the ceiling and unable to act in the interests of the community? It is not as if the existing limit is a final limit—there is always the power to go to a magistrate to get an extension. The ability of the police to keep people in detention for longer exists; it just requires an extra authority for them to be able to do so.

Hilary Benn (Labour, Leeds Central)

I am not entirely sure whether the hon. Gentleman is suggesting that we should go further, but in any case we are not suggesting that for one second. All that we are arguing is that in certain circumstances involving the difficulties identified by the PACE review—that is a good base of opinion, evidence and expertise on which to make the case—we should permit an extension.

On safeguards, it is important that we retain the requirement for the police to seek authorisation for continued detention from a senior officer of the rank of superintendent or above. The senior officer—this answers the question put by the hon. Member for North Down (Lady Hermon)—will now have to satisfy himself or herself that the investigation is being conducted diligently and expeditiously before granting an extension. The hon. Member for Buckingham (Mr. Bercow) conjured up the image of the police being obliged to spend a lot of time on cases that they were not interested in, to which the answer is that of course they will not do that.

The fact is that this is a change that the police, through the PACE review, have suggested to us it would be sensible to make. In the end, we are all happy to rely on the good sense and judgment of the police to use the power within the framework of the law where there are good grounds for doing so. I conclude by saying that I simply do not believe that it will be used in a vast number of cases, but in cases where it is necessary, it is the Government's view that it is sensible to make the change.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 166, in page 4, line 36, leave out clause 6.

The clause is somewhat surprising in that it removes the duty on the custody officer under the Police and Criminal Evidence Act 1984 to make a record of the property of detained persons when taking them into custody. We had an interesting debate in the Standing Committee, and I am especially grateful for the contribution made by the hon. Member for Woking (Mr. Malins), whom we miss today. He clearly stated the arguments for not removing that duty on custody officers.

The Minister's argument for doing so was highly pragmatic, focusing simply on reducing the bureaucratic requirements on police officers and thereby simplifying their task—[Interruption.] Does the hon. Gentleman wish to intervene?

Hilary Benn (Labour, Leeds Central)

I was agreeing.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister agrees, as one would expect, that his approach in Committee was pragmatic. There was no more substance to his argument than that having to record every item taken from a detained person could be a relatively time-consuming practice and that the police officer's lot would be much easier if that duty were removed. He spoiled his argument somewhat by adding that he expected guidance to suggest to custody officers that making a record of property was a very good idea and good practice, although not essential in every case. I found that rather difficult to understand—the Minister looks puzzled, but I assure him that that is what he said.

There is a strong counter-argument to that contention. First, if something is considered good practice but not desirable in all cases, I simply do not understand how one identifies cases in which it is not necessary to record property taken from a detained person, and cases in which it is right to do so. That is not a test that can be left to the good sense of the custody sergeant, because it would depend on the subsequent actions of the person taken into custody—whether they wished to make a formal complaint—which is something that he or she could not normally foresee at that point.

Two arguments must be adduced, the first of which centres on the interests of the detained person. There is a question about that, although that is not to impugn the honesty, integrity or thoroughness of members of the police force who are responsible for custody suites. My experience is that they are normally the most experienced and capable officers and they take their responsibilities extremely seriously. Nevertheless, when a person's property is confiscated, it is right that there should be some form of receipt for the articles taken. I find it difficult to conceive of a circumstance in which that would not be appropriate.

In conjunction with that general point is the finer point made by the Joint Committee on Human Rights, which expressed serious concern. The Joint Committee took cognisance of, but questioned, the Minister's assertion that the Bill does not engage protocol 1, article 1, of the European convention on human rights. The Joint Committee believes that under that protocol the authority for the confiscation of property is questionable, and that to confiscate and make no record makes the practice still more questionable. I agree. There is a potential violation of human rights in this instance and the Government should reflect carefully on whether the certification that they have provided is accurate in the light of the Joint Committee's advice.

My second argument against removing the practice of recording a detained person's property is, I believe, more salient: making a record is for the protection of the police. I know perfectly well that among those who are regularly arrested for one offence or another there is a culture of finding reasons to enter a complaint against the police about the treatment that they have received. That is standard practice—when I was involved with a police authority, it was almost endemic. To provide an entirely new context in which complaints can be made—to enable people to claim, "That sergeant took away £50 that I had in my pocket and he ain't given it back," or that some other item of property that the person had or pretends to have had on his person was not returned—will open up a new industry of complaints against the police.

In this country, complaints against the police are investigated properly. Any potential saving in bureaucracy made by not recording items taken from individuals will be more than compensated for—indeed, excessively compensated for—by the bureaucracy involved in investigating spurious or other complaints against custody officers about unrecorded materials claimed to have been taken from the arrested person and not returned at the due point. It seems to me that police officers need the protection and the certainty of having provided an itemised list and agreed it with the arrested person at the point of being taken into custody.

Vera Baird (Labour, Redcar)

Would not all the difficulties that the hon. Gentleman foresees be solved if there were guidance to the effect that, at the custody desk, property should be put into a bag, which is then sealed? The sergeant and the defendant sign the seal, which thereby presents its own record. That would save the time that is currently spent compiling a list.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Lady remakes a point that was made in Committee. There are alternative approaches that the Government could have used. I agree that having a bag sealed in the presence of the arrested person with his or her agreement, or keeping a record that the individual withheld assent to that process, gives the police officer essential protection. That is a proposal that the Government could have made, but have not.

John Mann (Labour, Bassetlaw)

Has the hon. Gentleman discussed protection of police officers' interests with the Police Federation, and does the federation concur with him?

David Heath (Liberal Democrat, Somerton and Frome)

I shall be perfectly open and say that I have not discussed that specific point. However, I have some experience of policing from my involvement in a police authority and I am aware of the distortions that can arise. Individual officers will have two thoughts in their head. They will rightly be concerned about how to reduce their workload and about how they are protected, which is the other side of the coin. The proposal of the hon. and learned Member for Redcar (Vera Baird) would have the benefit of achieving both aims, as it would reduce the workload to a manageable level and prevent spurious complaints against police officers doing their duty.

The only difficulty relates not to articles, but to money. That is a serious issue, and it was raised in Committee by the hon. Member for Woking, who was concerned that, at the very least, a record should be made of any amount of cash taken from a person at the point of their being taken into custody. It is self-evidently right and proper that that should be done. I am sure that the Minister will tell us that the guidance will say that it should be done. If so, why does not the Police and Criminal Evidence Act 1984—the basis for the codes of conduct and conduct in the custody suite—say the same thing? Why does the clause amend that Act by removing any requirement to record such information? Why have the Government not tabled an appropriate amendment that takes into account the concerns that have properly been expressed? The Minister appears to share those concerns, at least in part, as he seemed to indicate assent to the view that guidance would be given about recording amounts of cash.

Even at this stage, there is nothing to prevent the Government from saying that they will amend the Bill to provide protection. If they will not do so, the House should reject the clause and ask them to look again at the subject, and formulate a proposal that achieves the objective of reducing bureaucracy while also reducing the possibility of abuse of the process, whether on the part of the police officer or, as is far more likely, on the part of the arrested person in the form of a spurious complaint. In the event of such a complaint, much less of a defence will be available to the police officer if no record is kept.

I ask hon. Members seriously to consider the matter. Although it is small in the context of the whole Bill, it is nevertheless serious in terms of police procedure. I hope that hon. Members will take seriously the points raised not only by me but by a wide cross-section of the House.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Somerton and Frome (Mr. Heath) made a powerful case in favour of the amendment. Unlike the earlier amendment that touched on the civil liberties of the citizen, it does not deal with some great constitutional principle, but relates to an area—I am slightly mystified about this—in which there seems to be a divergence between the views of hon. Members, including myself as a legal practitioner, about what is in the best interests of all parties, including police and defendants, and the view that the police have clearly advanced, which the Minister has accepted in the clause.

It is incumbent on me to explain why I take that view. My hon. Friend the Member for Woking (Mr. Malins) made a powerful case about the matter in Committee. He started by saying that it was extremely useful for a full list to be made of a detained person's property. I concur with that view, because such a list assists both the police and, subsequently, the prosecution—a point to which I shall return in a moment. Of course, it is also a protection for the defendant, as a proper list of property ensures that he will get all his property back, and for the police, as it ensures that they cannot be subject to any allegation that they have held on to somebody's property improperly. While I accept the point made by the hon. and learned Member for Redcar (Vera Baird), who said that it might be possible to put all the items into a sealed bag, I believe that a written record provides better reassurance.

The other issue that has particularly troubled me is that in a number of Customs and Excise cases in which I have acted as prosecutor, a subsequent reference to the property listed as having been on a defendant at the time of arrest has proved extremely useful in bringing the prosecution, when the officers themselves did not have the slightest idea when they made the list that the items on it would turn out to be relevant subsequently. Examples include bits of paper with numbers written on them, one of which turned out to be a key telephone number relating to a person with whom the defendant was alleged by the Crown subsequently to have made contact and who was part of a conspiracy to import substantial quantities of cocaine into this country.

I remember calling cards and visiting cards cropping up in another case. The cards had all been usefully listed; Customs and Excise has always tended to be extremely diligent in listing items taken away from defendants in airports and ports of entry, and in including any details. Frequently, the defendant will not be released from custody prior to trial, so that material will remain in a locker. In this particular case, the material was noticed because, as prosecutor, I had looked at the custody record sheet with the investigating officer in preparing for the trial and said "What is that? I think we ought to have a look at it."

I suppose that the police can be assumed to know their own business, but I cannot help thinking that the issue will give rise to problems and that, in some cases, things may slip through the net that could otherwise be very usefully recorded. This is a practical issue. It is practical for the defendant, who may say to his counsel when it comes to his trial, "Well, you know that I had on me the card that proved that I saw Bloggs that afternoon and it is part of my alibi defence; he gave me his card." If the card details were recorded at the police station at the time of his arrest, they would be powerful evidence ensuring that the prosecution and the police could act in tandem with the defence in providing evidence that could help establish the truth in the case.

I think that we are missing something in allowing the police to get out of the routine—I am sure that it is burdensome—of noting down fully what is in people's possession when they are arrested. My hon. Friend the Member for Woking pointed out that the police have a short-circuiting method, as they will record only what they think is strictly necessary. Otherwise, they will simply include information under generic terms such as "other cards", if they think it is irrelevant, so the burden does not seem especially onerous.

Another thing puzzles me very much. I have been a lay visitor at police stations, so I have experience of sitting and watching the room into which arrested persons are brought when they are processed before being put into the police cells. I have seen that happen on numerous occasions. Indeed, I had six years of visiting police stations in Hammersmith and Fulham in that role, which was very educational for me, because that is not an environment into which a barrister normally has cause to go. I did not notice that the duty was a particularly onerous chore. It is true that the custody sergeants get rather bored carrying it out, but they seem to be capable of doing so fairly quickly. Unless somebody is arrested while in possession of hand baggage containing massive amounts of property, it is not my experience that that responsibility is among those that are so burdensome that it would be of great use to the police to be freed of it.

One point that needs to be considered is that the police must establish a custody record when somebody comes into custody. It is not as if they cannot do so or can avoid doing it completely; so one way or another, the custody record sheet must be opened and property listing must take place. At least, a decision must be taken about what should or should not be listed.

I really am puzzled that, in those circumstances, the police feel that the difference between a list of three items and a list of 15 will make such a massive difference to their time. Of course I accept that there may be circumstances in which 16 football hooligans have to be processed after a match and it might be convenient to be able to short cut, but the House needs to balance the short cutting against the possible down side. I repeat that what strikes me most forcefully is that, from my experience in criminal practice, the list of a person's property proves useful, one way or another, even though it is not expected to be, when the trial takes place and people say, "Let's see what's on the custody record sheet."

The Minister will recollect that the official Opposition did not press the matter to a vote in Committee—we withdrew a probing amendment—but the more I reflect on this issue, the more I think the police are doing themselves a disservice in trying to get such a short cut. Unless the Minister can persuade me that the police have got it right and that those of us who have other experience of the process, as legal practitioners, lay visitors or anything else, have got it wrong, I shall support the amendment in the Division Lobby this afternoon.

I am sure that there are all sorts of other areas where bureaucracy ought to be cut, and I welcome the fact that cutting that type of bureaucracy has been considered, but on careful reflection—I hope that the Minister will take these comments in the spirit in which they are made—I think that the police may regret such a mistake if Parliament enacts it on their behalf.

Vera Baird (Labour, Redcar)

I felt that the hon. Member for Beaconsfield (Mr. Grieve) made a very powerful point. I fear that I have not really thought this through before, but I, too, have in course of practice come across many cases in which something being or not being on the list was highly relevant to the Crown or to the defence and sometimes to both.

The difficulty with the solution that I proposed, which I thought met all the problems mentioned by the hon. Member for Somerton and Frome (Mr. Heath), is that the record of what was in the defendant's possession when he came into the police station only survives by my mechanism so long as the bag of property survives. Once the bag of property is broken open—either because it is returned to him, or because some of the items are to be exhibited—there is no continuing record and no opportunity for a record to be made when the bag is broken open. So my suggestion would not provide a solution to safeguard evidence or materials for both sides.

I should very much like to invite the Minister to apply his mind to that difficulty. I have no doubt that lists of the property on people's bodies at the time of arrest can be highly relevant. The other point that perhaps my hon. Friend needs to consider very carefully is that the custody record is made out by a custody sergeant who is not an officer involved in the case in any event and that it would be a very rare case indeed where he had the slightest understanding of relevance of the material on the defendant's body.

David Heath (Liberal Democrat, Somerton and Frome)

It just occurs to me that one advantage of the sealed bag scheme that the hon. and learned Lady proposes might be that it would eliminate the queues, which are the problem that the Minister is trying to address, by allowing the recording to take place at a later stage. That would release the operational officer back to his beat, or whatever else he is required to do, and leave the custody suite officers to record the articles and retain their evidential value at their leisure.

Vera Baird (Labour, Redcar)

I am very grateful to the hon. Gentleman for that intervention; it is perhaps an example of how the process of debate and allowing interventions while a thought is fresh in the mind can refine the issues. It is an extremely good idea. If the real problem is a queue in the police station at the time, the job of listing the property could simply be put off by the mechanism of bagging up the items, signing across the seal and, when more time is available—probably to a civilian—getting the defendant out of his cell and making the list at that time, when there is no pressure at all. I commend that to the Minister as an idea that should be considered very seriously.

Hilary Benn (Labour, Leeds Central)

This short debate links very neatly with the previous one because it, too, is about time—in particular, police time—and hon. Members will be aware that the purpose of clause 6 is to allow the police more discretion in recording and handling property, whereas the Police and Criminal Evidence Act 1984 currently requires them to "ascertain and record everything". The intention is not to do away with the records, but to give the police greater flexibility in deciding how detailed a record they keep and, in effect, to reach a judgment in each case.

As with the previous issue that we debated, this proposal arises from the PACE review, and it comes from the police. It is interesting that we have heard the argument advanced that the police who proposed it may not have fully appreciated what they were suggesting. Indeed, that is a debatable point. The PACE review said that the police identify the requirement to list a detained person's property in full as time consuming and not always necessary. For that reason, they have suggested that PACE should be changed.

Perhaps I can reassure the House on this issue, which is relevant to time. We were talking about the clock in the previous debate and, in fact, the clock starts the moment that the person arrives in the police station, so the length of time taken to record everything in a bag, for the sake of argument, is taken away from the overall detention period and, indeed, adds to the time that the person is detained.

Keeping records will still be the normal practice in any case, but there is no reason why, as the law is currently framed, the way in which the information is kept should be precisely prescribed. For example, the police may prefer to maintain a freestanding property register. In those circumstances, why should not the custody record refer to the existence of any separate property record?

The strongest argument for the proposal is profoundly pragmatic—the hon. Member for Somerton and Frome rightly attributes that motivation to the Government in introducing it—as it would make possible the proposal to which my hon. and learned Friend the Member for Redcar (Vera Baird) drew attention in her intervention: all the property could be put in a sealable bag and the person detained and the custody sergeant could sign the seal, and that sequence of events could occur if the seal were broken subsequently. That would avoid having to write down a great list. I do not know about other hon. Members' bags, but there would be quite a long list of things if I were arrested with my bag in my possession.

John Bercow (Conservative, Buckingham)

A most untypical case.

Hilary Benn (Labour, Leeds Central)

Oh, I do not know about that, although needle and blue cotton thread may not be in all hon. Members' bags.

If all the property were put into a big, strong plastic container, which was sealed and signed by the defendant and the custody sergeant, that would be a much more sensible way to hold the property, rather than listing it at great length. The current law would not permit that to happen, which is why we have included clause 6, because that is exactly what it will allow. The hon. Member for Somerton and Frome said what a jolly good idea and asked why the Government did not go down that road, but clause 6 does go down that road by making possible the use of a plastic bag, which is not currently the case.

The hon. Gentleman also made an important point about certain items, such as money and other valuables, and it is certainly our intention that those should continue to be recorded. Indeed, we will refer to that issue in the guidance on dealing with detained persons' property that we will provide to the police, assuming that the clause forms part of the final Act, as I hope that it will.

Denzil Davies (Labour, Llanelli)

As I understand it, the Government are replacing a legislative provision with what is called guidance. What is the status, if any, of this guidance? Is it to be a piece of delegated legislation? If it is breached, what is the sanction? If there is no sanction, what is the point of the guidance?

Hilary Benn (Labour, Leeds Central)

The purpose of the guidance is to assist the police in giving effect to the change that they have asked for for the reasons that I have advanced. As I have said, in their view it is not necessary in all cases to list every item that people have in their possession when they are arrested. The guidance would go to the police. It would be expected that the police would follow that guidance—it would not have the same force as PACE—in operating the policy and in exercising the discretion available to them when deciding in precisely what form the property should be recorded.

Denzil Davies (Labour, Llanelli)

My hon. Friend has been helpful. He says that the guidance would indicate what procedures should be followed, but what if the police do not follow the procedures? What then is the sanction?

Hilary Benn (Labour, Leeds Central)

In the circumstances to which my right hon. Friend alludes, it would depend on precisely which way the police had not followed the procedures. I was about to say that I undertake to reflect upon that. The issue relates to the point that the hon. Member for Beaconsfield (Mr. Grieve) raised, where there are circumstances in which an individual is anxious that it should be recorded that he or she had in their possession certain items at the time when they were arrested.

Two arguments have been advanced about why difficulties might be created from an evidential point of view, which is the point on which the hon. Member for Beaconsfield focused when indicating that he was unhappy about the proposed provision. I undertake to reflect on the situation where an individual is especially anxious that it should be recorded that he or she had something on them. It seems that that could appropriately be covered in the guidance.

I shall complete the point about evidential value. PACE already allows for the investigating officers—obviously not the custody sergeant, who is undertaking a clerical recording task—to examine the person's belongings if they think that they are pertinent to the investigation, and it will continue to do so.

My hon. and learned Friend the Member for Redcar suggested that perhaps the bag could be left on one side, for the full list of property to be written out at a later date, but I envisage a practical difficulty with that. Under the current arrangements, the average length of time that people are detained is about five hours. What will happen if the person is to be released and his or her property has not been recorded in detail because the police have had to devote time and effort to other priorities? That would be a difficulty in operating such a policy.

Dominic Grieve (Conservative, Beaconsfield)

I take the Minister's point that it would always be possible for the investigating officer to go back, as it were, to have a look later. However, there are two points. First, if the person has been released following charge and the property was not retained, it would be impossible to make the record. The property would have disappeared. If it had been fully recorded, it might still be possible to establish what was on the defendant even though the property itself had gone.

Secondly, in reality in many cases, reading the custody record sheet has alerted me to the existence of property that had not been searched for by the investigating officers. If we are to say, whenever there is a prosecution, "Please look in the property bag as a matter of routine," that will add to the bureaucracy.

Hilary Benn (Labour, Leeds Central)

It is not the intention that the proposed change should add to the current bureaucracy. In the end, we are trying to strike a balance. The view has been put to the Government by the police and the PACE review that to ascertain and record every item in every case, as the law currently provides, is over-prescriptive for the reasons that the police have advanced. They would like to have greater flexibility, and we have discussed a number of ways to achieve that that would seem to be satisfactory. We are balancing that with the arguments that I hear frequently and forcefully put by Opposition Members about bureaucracy bearing upon police officers. Before us is a sensible and pragmatic anti-bureaucracy measure for which the police have asked.

John Bercow (Conservative, Buckingham)

I am not a lawyer, and I say that as a matter of pride. However, I am interested in the rights of the suspect. As the Minister says, the arguments are finely balanced. I ask the hon. Gentleman further to explain what he appeared to be suggesting a few moments ago whereby the detained person might be required to specify something that he or she particularly wanted to be recorded. Given that the Minister said in an earlier debate that someone might be incapable either because of alcohol consumption or drug absorption from conducting himself properly, is that not a potential conflict? If the problem can be easily resolved or if I have misunderstood the Minister, no doubt he will explain.

Hilary Benn (Labour, Leeds Central)

In circumstances where someone is intoxicated, it will be difficult to get much sense out of them, whether that is in relation to the custody record or their possessions at the time of arrest. That would also apply to anything else that the police might wish to ask them about the circumstances that led to their arrest. In responding to the debate, I was trying to make the point that it should be possible—as I have said, I undertake to consider the matter—within the guidance to respond to the point made by the hon. Member for Beaconsfield, where an individual is anxious that it should be recorded that they had a particular item of property in their possession at that moment. He gave the example of a business card. The hon. Gentleman has made a fair point and I undertake to respond to it so as to make the new system operational.

The hon. Member for Buckingham (Mr. Bercow) was gracious enough to acknowledge that we are balancing different arguments in trying to reach a sensible way forward. I hope that the House will accept that the reason for the clause is the proposed change, which will reduce bureaucracy, as the police request. That reduction in bureaucracy can be combined with other ways of securing property. A plastic bag with a seal and two signatures is an effective system to ensure that arguments such as "Did you have this in your possession?" or "Did the police add something to what were alleged to be your possessions?" would be overcome. At the same time, through the guidance, we would provide for continued recording of items such as money and other valuable items in the circumstances that I have outlined.

Sylvia Hermon (UUP, North Down)

I was hoping that the Minister would address the serious matter raised by the hon. Member for Somerton and Frome (Mr. Heath) about the compatibility of clause 6 with human rights obligations under the first protocol of article 1. Is the hon. Gentleman convinced that the clause is compatible with our obligations regarding the peaceful enjoyment of people's possessions?

Hilary Benn (Labour, Leeds Central)

We think that the clause is compatible with those rights, and that is the view that we have expressed.

David Heath (Liberal Democrat, Somerton and Frome)

I find it a little difficult to understand how confiscation without record is compatible with the peaceful enjoyment of property. Even setting that aside, the Minister has failed to persuade elements of the House that a sensible way forward is to take away all the protections that are available under PACE, which, as the right hon. Member for Llanelli (Mr. Davies) said, is law, and replace it with something that the Minister has not yet worked out, which will be put forward as guidance and expected to do the same job. I am not persuaded of that. I do not think that many Members will be persuaded of that. Therefore, I intend to press the matter to a Division.

Schedule 1 — Amendments Related to Part 1

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 104, in page 160, line 10, leave out paragraph 17.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss Government amendments Nos. 105 to 108.

Hilary Benn (Labour, Leeds Central)

These are technical amendments to correct an oversight in schedule 4 to the Police Reform Act 2002. Schedule 4 allows designated civilian investigating officers to apply for warrants under section 8 or schedule 1 of PACE. In paragraph 16 we built in the usual PACE protections that would apply to a constable obtaining and executing a warrant. Those include, for example, giving full information in the application for the warrant, and those executing the warrant identifying themselves to the occupier of the premises and endorsing the warrant with what was found.

Unfortunately, some of those protections were not replicated in paragraph 17, which deals with warrants issued in relation to confidential material under schedule 1 of PACE. In summary, the amendments deal with that omission. They also make various changes to schedule 4 of the Police Reform Act 2002 to allow for the fact that someone authorised to accompany a designated civilian investigating officer in executing a warrant will, further to clause 2 of the Bill, be able to exercise certain specific powers. Relevant PACE protections must also apply to the actions of such persons. I hope that the House will accept the amendments.

Edward Garnier (Conservative, Harborough)

I accept that the amendments correct omissions in the Police Reform Act 2002, as the Minister has just told us, but that leads me to ask whether the omission occurred as a result of the failure of the House to consider that aspect of the 2002 Act by reason of a guillotine. Can the hon. Gentleman assure me that the particular provision in the 2002 Act was fully discussed on the Floor of the House or in Committee and fully considered in the other place before that Bill became an Act? We know from this Bill that a great many of its clauses will never be discussed in the House. Much as I enjoy seeing the Minister in the Chamber, I do not want him to have to come back to the House in a year's time with another Bill to correct omissions from the present Bill.

Hilary Benn (Labour, Leeds Central)

The honest answer is that I do not know the answer to the hon. and learned Gentleman's question, but I shall consult the record and write to him. In the process of legislating, which is an increasingly complex business, the honest truth is that we do not get everything perfect first time round. With his experience, the hon. and learned Gentleman will know that over time such oversights come to light and it is appropriate that we should use the next available opportunity to put them right. I hope that the House will accept the amendments in that spirit.

Amendment agreed to.

Amendments made: No. 105, in page 160, line 27, at end insert—

'17A In paragraph 17 (access to excluded and special procedure material) after paragraph (b) there is inserted—

"(bb) section 15 of that Act (safeguards) shall have effect in relation to the issue of any warrant under paragraph 12 of that Schedule to that person as it has effect in relation to the issue of a warrant under that paragraph to a constable;

(bc) section 16 of that Act (execution of warrants) shall have effect in relation to any warrant to enter and search premises that is issued under paragraph 12 of that Schedule (whether to that person or to any other person) in respect of premises in the relevant police area as if references in that section to a constable included references to that person;".'.

No. 106, in page 160, line 27, at end insert—

'17B In paragraph 20 (access and copying in case of things seized by constables) after "by a constable" there is inserted "or by a person authorised to accompany him under section 16(2) of that Act".'.

No. 107, in page 160, line 28, leave out paragraph 18.

No. 108, in page 161, line 2, at end insert—

'18A After paragraph 24 (extended powers of seizure) there is inserted—

"Persons accompanying investigating officers

24A (1) This paragraph applies where a person ("an authorised person") is authorised by virtue of section 16(2) of the 1984 Act to accompany an investigating officer designated for the purposes of paragraph 16 (or 17) in the execution of a warrant.

(2) The reference in paragraph 16(h) (or 17(e)) to the seizure of anything by a designated person in exercise of a particular power includes a reference to the seizure of anything by the authorised person in exercise of that power by virtue of section 16(2A) of the 1984 Act.

(3) In relation to any such seizure, paragraph 16(h) (or 17(e)) is to be read as if it provided for the references to a constable and to an officer in section 21(1) and (2) of the 1984 Act to include references to the authorised person.

(4) The reference in paragraph 16(i) (or 17(f)) to anything seized by a designated person in exercise of a particular power includes a reference to anything seized by the authorised person in exercise of that power by virtue of section 16(2A) of the 1984 Act.

(5) In relation to anything so seized, paragraph 16(i)(ii) (or 17(f)(ii)) is to be read as if it provided for—

(a) the references to the supervision of a constable in subsections (3) and (4) of section 21 of the 1984 Act to include references to the supervision of a person designated for the purposes of paragraph 16 (or paragraph 17), and

(b) the reference to a constable in subsection (5) of that section to include a reference to such a person or an authorised person accompanying him.

(6) Where an authorised person accompanies an investigating officer who is also designated for the purposes of paragraph 24, the references in subparagraphs (a) and (b) of that paragraph to the designated person include references to the authorised person.".'.—[Hilary Benn.]

Schedule 2

Charging or Release of Persons in Police Detention

Chris Mullin (Labour, Sunderland South)

I beg to move amendment No. 124, in page 164, line 18, leave out from 'section 38(1))' to end of line 19 and insert—

'(a) before "the normal powers", there is inserted "Subject to subsection (1CA) below,",

(b) after "section", in the first place where it occurs, there is inserted "37(7)(a)".'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

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

No. 123, in page 164, line 25, at end insert—

'(1CA) Where conditions are imposed by a custody officer, no condition shall apply for more than 28 days from the day on which conditions are first imposed on a person's bail without charge.'.

No. 127, in page 164, line 28, after 'application', insert 'by a constable or'.

Chris Mullin (Labour, Sunderland South)

The amendments would place a time limit of 28 days on bail conditions imposed by a custody officer before charge. At present the police can impose conditions on bail only after a suspect has been charged with an offence. The amendments would bring about quite a large change, but when the Select Committee on Home Affairs considered the Bill before Second Reading, we accepted that it was a necessary and logical part of the move towards charging by the Crown Prosecution Service. We were reassured by the fact that the Bill contains a number of safeguards to protect the suspect—bail must be imposed by a custody sergeant; it must have the consent of the prospective defendant; and if, after he has initially agreed, he thinks it is too onerous or that it continues for too long, he can apply to magistrates to have it discharged.

The Select Committee was concerned to note that as the Bill is drafted, there is no limit to the length of time for which pre-charge bail conditions can run. We think that that is too onerous. Also, it does not provide the police or the Crown Prosecution Service with any incentive to get a move on. As we know, the criminal justice system can sometimes move a mite slowly. We therefore proposed a 28-day limit, which we based on the evidence of Mr. John Burbeck, the chief constable of Warwickshire and the spokesman for the Association of Chief Police Officers on criminal justice matters, who I should have thought was an impeccable source.

I regret to say, however, that the Government rejected that. It has also since been drawn to my attention that some ACPO members are concerned that a 28-day limit is too tight in some cases. My amendment No. 127 attempts to address that concern by allowing for the police to apply to a magistrates court for a variation of bail conditions. It would then be for the court to determine whether it was appropriate to extend the conditions beyond 28 days.

It is not unreasonable that there should be some limit, given the delays endemic in our criminal justice system. I should have thought that the Government could quite easily concede the amendment without inflicting any damage on their objectives, and I look forward to hearing that they propose to do so.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Sunderland, South (Mr. Mullin) does a good service to the House in raising his concerns. Our view has always been that there was great merit in introducing the principle of bail conditions prior to charge. That may be universally welcomed throughout the House. Clearly, it is desirable because, as we discussed on an earlier group of amendments, it would allow the police to come to immediate decisions. If they can impose bail conditions that secure public protection while they are reconsidering the matter, that is a useful tool.

Against that is the fact that an individual would have restrictions placed on his freedom to behave in a lawful fashion if he wishes, without ever having been charged with any offence. As usual, the House must balance those two factors. We are comfortable, if I may use the word, with the principle of introducing bail prior to charge, but we agree with the hon. Gentleman that the current position in the Bill, which allows that to continue for an indefinite period, is gravely unsatisfactory. We concur with him that 28 days is a perfectly logical cut-off for the matter to be reconsidered. So the hon. Gentleman has our support.

We did not table an amendment to the clause on Report because, wishing to select what we thought were key areas, we were mindful of the fact that another place will have an opportunity to consider these issues with a great deal of legal expertise and experience. I would say to the Minister, however, that I am absolutely convinced that this is an issue which, unless the Government reconsider it, will not go unchallenged in the other place. I know that from consultations and discussions that I have had with my colleagues there, who have expressed their concern about this matter. I hope that the Minister will take this opportunity to give some assurance to the House that the Government will look further at this issue, because I cannot logically see why there should not be a 28-day cut-off point. Equally, if the Government wish to come back and say that another period of time would be appropriate, they could give us an alternative to consider.

The cases in which this provision would be likely to be used are plainly not going to be the most serious in terms of public protection issues. If there really were a key issue about protecting the public in a particular case, it would be a serious matter and the police would doubtless extend the detention period for a long time and try to make it their business to charge whenever possible because they would be concerned about someone being at liberty. On the other hand, the provision might be used in circumstances in which the police had anxieties about protecting the public or witnesses, but simply did not have the necessary evidence. That is a compelling reason for putting a finite limit on the period for which these restrictions can apply. I hope that we shall receive a positive response from the Minister on this issue. My view is that 28 days makes a lot of sense.

David Heath (Liberal Democrat, Somerton and Frome)

I pay tribute to the Chairman of the Home Affairs Committee, the hon. Member for Sunderland, South (Mr. Mullin), not only for tabling the amendments but for the work of his Committee on the Bill. In the Standing Committee, we found many opportunities to quote the work of his Committee to good effect, and we are grateful to him and his colleagues.

I entirely agree with the hon. Gentleman on the specific points that he made. The strong argument for conditional bail before charge is that it would be a substitute for detention. I accept that, although I share some of the concerns expressed by the Select Committee that it might be used in circumstances in which there was insufficient evidence to charge. In such cases, the provision would become an onerous imposition on the freedom of an individual if it were used as a replacement for detention which could not be effected simply because there was no evidence. We have, however, had assurances from the Minister on that matter, and, for the moment, let us accept those assurances.

The idea that there should be no time limit on the imposition of conditional bail, however, seems entirely outwith the assertion that this is the more generous and liberal alternative to detention in custody. If a person were to be detained, there would be clearly delineated time limits on the period of detention, so whatever the arguments for conditional bail before charge, there ought to be a time limit on it. Whether 28 days is appropriate is a matter for discussion. It is, to some extent, an arbitrary limit. The advice from Mr. Burbeck was interesting and telling, given its source and the seniority of Mr. Burbeck and his responsibilities in ACPO. There should be a time limit. If the Minister is not prepared to accept the amendment, it is incumbent on him to explain how any time limit might be imposed, and what limit he would find acceptable. If he does not believe that any time limit is appropriate, that calls into question the whole proposition of conditional bail before charge.

The one further argument that I would adduce is that conditional bail lets the prosecuting authorities off the hook to a great extent. If our intention is to ensure that prosecutions are brought speedily and effectively, with the right charge at the right time, to allow an alternative of conditional bail over a prolonged period while the prosecuting services get their act together would be a retrograde step towards achieving the objectives, which I thought the Home Office and the Lord Chancellor's Department shared, of making progress towards the speedier justice system that we would all like to see.

Edward Garnier (Conservative, Harborough)

I heartily agree with what the hon. Member for Somerton and Frome (Mr. Heath) has just said. My views would be different if we were talking about bail imposed by a court, but we are talking about bail imposed by a custody officer, who is not part of the judicial system but a policeman. To allow police officers to restrict the liberty of a citizen for an unlimited amount of time seems a strange thing for the House of Commons—which is, after all, the defender of the liberties of the subject—to want to become engaged in. I am all for administrative efficiency, but there comes a time when Members of Parliament have to work out where they belong.

Are we interested in administrative efficiency over and above the liberty of the subject? In saying that, I am interested not in giving improper protection to guilty people but in ensuring that legislation, particularly in the field of criminal justice, is properly thought about. The Minister is one of the more honourable and thoughtful members of the Government. I am very concerned, however, that, for reasons that are administratively convenient and useful for the progress of legislation as a whole, he is allowing himself to whip through the House of Commons—I use the word "whip" with a small "w"— a piece of legislation that is careless of the rights of the innocent citizen.

I do not normally lose much sleep over the rights of people who have committed hideous offences, save that they should be incarcerated in humane conditions following a proper trial, but I am concerned that the clause, if unamended, will give powers to police officers—who, as individuals, might be entirely wonderful people—who are outside the judicial process and not susceptible to immediate judicial control. Cases might involve people being arrested at the dead of night, and in all sorts of conditions. We need to be careful before we dance gaily round the legislative maypole and allow clauses of this kind to go through unamended .

If I understood the Chairman of the Home Affairs Committee correctly, he does not intend to press the amendment to a vote.

Chris Mullin (Labour, Sunderland South)

I did not say that.

Edward Garnier (Conservative, Harborough)

I am glad of that. I think that the threat of the Chairman's non-promise not to put the matter to a vote—if I may use as many negatives as I possibly can—is something to which the Government ought to pay attention. I am not in control of the Government—or of the official Opposition, still less of the Liberal Democrat party—on these matters, but I believe that we all need to stop from time to time and to think a little more carefully about what is contained in huge great Bills such as this. Here we have a tiny little clause that has huge implications, and the burden of proof is firmly on the Government to demonstrate that what will happen is good and necessary.

David Cameron (Conservative, Witney)

I agree with the hon. Member for Sunderland, South (Mr. Mullin) on whose very good Select Committee I sit. I want to add one point to what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said. He said that having conditional bail without a time limit would improve administrative efficiency, and that that was why the Government were introducing the measure. There is a danger that some of the provisions in the Bill—this is one of them—will not improve administrative efficiency because they will almost make life too easy for the police.

I am a great supporter, indeed a great fan, of the police, and I want to ensure that they can do their job properly. What I heard in Committee and what I have heard today makes me worry about a number of provisions in the Bill, of which this is one. I fear that the police are being sent this message: "Do not worry about charging. You can keep this individual on bail with conditions indefinitely. Even when you are thinking about charging, you can keep him in custody for 36 rather than 24 hours. And when it comes to trial, do not worry about getting all the evidence ready, because previous convictions are now admissible in court." I do not necessarily think that all those changes are wrong, but I see no case for conditions on bail without limit. The Select Committee heard compelling evidence in favour of a limit.

Edward Garnier (Conservative, Harborough)

I agree, but whether we use my hon. Friend's argument or mine it seems clear that the measure should be examined carefully. May I suggest a solution? If unlimited police bail arrangements are to be introduced, could not the Government, here or in another place, give defendants the right to apply to the courts for limitation of those arrangements, or for them to be brought under the courts' control?

David Cameron (Conservative, Witney)

That is one possible answer. The Select Committee came up with four safeguards, the simplest of which is my favoured solution. A four-week limit would enable the police to know the time frame within which they must operate—that is, get on with the job we are talking about, which is getting the charge right. According to the Government, many of their proposals are intended to produce that result. I agree that the charge should be right in the first place, but there should be a time limit. That is why I support the amendment.

Hilary Benn (Labour, Leeds Central)

I echo the tributes paid to my hon. Friend the Member for Sunderland, South (Mr. Mullin) for the work that he and his colleagues do in general, and for the work they have done in respect of the Bill. I hope that he will feel—if not now, by the end of my brief speech—that this is a dialogue worth having. It certainly is from the Government's point of view.

We did of course note the Select Committee's perception of a risk that onerous conditions might be allowed to run indefinitely. It is arguable that that risk is slight, for although there is currently no limit on the duration of police bail it is not the practice of the police to bail suspects indefinitely; typically, they are bailed to return to the station on a specified date a few weeks hence. I should add, for the benefit of the hon. and learned Member for Harborough (Mr. Garnier) in particular, that the conditions can be imposed only with the suspect's consent. If the suspect does not want the conditions to be placed on him or her, it will fall to the police to charge the suspect and take him or her to court; it will then be for the magistrates to impose the conditions. That is an important safeguard. The conditions will be onerous only to the extent that the person concerned may be prepared to take them on as part of a conditional bail arrangement.

Notwithstanding what I have just said, the Government understand the reasons for the Select Committee's recommendation. We said in our response that we were considering it, and we are. We did not reject it, as was suggested by my hon. Friend the Member for Sunderland, South.

The limit most likely to be acceptable is a limit on the initial period of bail rather than on the duration of the conditions, renewable by the police after the suspect's return to the station. The specified period would need to be long enough to enable most cases to be determined without renewal. On the basis of charging pilots and discussions with the Crown Prosecution Service, it appears that, in most circumstances, a five-week period would be enough to enable charges to be brought. We have heard some debate about the appropriate length of time. I hope, though, that my hon. Friend will be content to accept my assurance that the Select Committee's recommendations have not been rejected, and are being considered.

Chris Mullin (Labour, Sunderland South)

I apologise if I have misrepresented the Government's position. We could argue about the number of days involved, but I want to know whether my hon. Friend is minded to impose a set period—a period renewable not at the discretion of the police but, if it must be renewed, at the discretion of the magistrates court.

Hilary Benn (Labour, Leeds Central)

The honest answer is that, as I have said, we are considering the point that my hon. Friend has put both in the Select Committee and in discussion. He has clearly had an effect, and I hope that on that basis he will not press his amendment.

James Clappison (Conservative, Hertsmere)

I, too, urge the Minister to consider carefully the case put by the Select Committee Chairman.

The first safeguard that the Minister mentioned was the consent of the person concerned. Am I right in thinking that the alternative to the person's consent would be for that person to remain in custody? Need we take that into account in considering how much of a safeguard this is?

Hilary Benn (Labour, Leeds Central)

As the hon. Gentleman will know, the period for which the person could be detained is governed by the limits we discussed in the context of an earlier clause. We are not talking about periods of four or five weeks but about much shorter periods, which currently depend on whether an arrestable or a serious arrestable offence is involved.

I hope that Members on both sides of the House will take what I have said at face value. I have said that we are considering the point that has been put. Let me add for the sake of completeness that amendment No. 127, which is grouped with amendment No. 124 but has not been referred to directly, would enable a constable as well as the suspect to apply to a magistrates court for the varying of pre-charge bail conditions. That appears to be superfluous, as the custody officer may, with the suspect's consent, vary the conditions in any event.

Edward Garnier (Conservative, Harborough)

I do not know whether the Minister has finished his speech, but I want to ask him a question.

Hilary Benn (Labour, Leeds Central)

If it will be helpful, I will give way.

Edward Garnier (Conservative, Harborough)

The Minister is living up to the encomium that I bestowed on him a few moments ago.

The Minister says that his proposal would affect only defendants who consented, but we read in the newspapers about cases that have gone wrong, and cases at which the Appeal Court may have to look for a second time. In such cases the defendant's consent is often in doubt. The defendant may suffer from some mental incapacity, although not to the extent that the police officer granting bail at the time thought him mentally defective or deficient. I fear that a police officer might say, "Just sign here. You can come back at some future date when we have got in touch with you again."

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. This is a rather lengthy intervention.

Edward Garnier (Conservative, Harborough)

I do not want to be rude, Madam Deputy Speaker, but this is quite a serious issue. The Minister has probably got the point by now, but I do not intervene just to delay the proceedings or to interfere with your rulings. I intervene because of a genuine concern not to waste everyone's time and money with Court of Appeal cases.

Hilary Benn (Labour, Leeds Central)

I thank the hon. and learned Gentleman for raising that point. I will reflect on it in the context of what I have said, namely that the suspect's consent will be needed. I will reflect on his point about what constitutes consent.

Chris Mullin (Labour, Sunderland South)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being two and a half hours after the commencement of proceedings, Madam Deputy Speaker, pursuant to Order [this day] proceeded to put the Questions necessary for the disposal of the business to be concluded at that hour.

Clause 25 — Further Provision About New Method

Clause 47 — Warning to Jury

Clause 99 — Admissibility of Hearsay Evidence

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 146, in page 60, line 6, leave out 'admissible' and insert 'not to be admitted'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

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

No. 147, in page 60, line 6, leave out 'if, but only if' and insert 'unless'.

No. 148, in page 60, line 9, at end insert 'or'.

No. 149, in page 60, line 10, leave out from 'admissible' to end of line 13 and insert

', and the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admitted.'.

No. 150, in page 60, line 15, leave out '(d)' and insert '(a) or (b)'.

No. 151, in page 60, line 31, at end insert

'and the court shall in no event admit such a statement if it is of the opinion that, if the statement were admitted, any conviction of the defendant would as a result be based wholly or substantially on statements not made in oral evidence in the proceedings'.

No. 154, in page 64, line 29, leave out clause 104.

No. 155, in page 65, line 14 [Clause 105], leave out subsections (4) to (8).

No. 121, in page 65, line 42, leave out clause 106.

No. 156, in page 65, line 44 [Clause 106], leave out from 'deceased)"' to end of line 44 and insert

'only a statement by a person to whom the original statement was made is capable of admission in criminal proceedings as evidence of a matter stated in the original statement (so that a statement by B, but not A, may be admitted as evidence of the fact that C shot the deceased).'.

No. 157, in page 66, line 1 [Clause 106], after 'statement', insert

'not made in oral evidence in the proceedings'.

No. 158, in page 66, line 7 [Clause 106], leave out subsection (3).

No. 159, in page 66, line 15 [Clause 107], leave out '104 or'.

No. 160, in page 66, line 23 [Clause 108], leave out ', 104'.

No. 161, in page 68, line 23 [Clause 111], at end insert

'(and, where the statement is tendered by the defence, of the impact of its exclusion on the fairness of the trial)'.

No. 162, in page 71, line 6 [Clause 116], leave out from 'unavailable)' to end of line 10.

No. 163, in page 194, line 17 [Schedule 6], leave out from 'unavailable)' to end of line 21.

No. 164, in page 194, line 29 [Schedule 6], leave out from 'unavailable)' to end of line 33.

No. 165, in page 194, line 41 [Schedule 6], leave out from 'unavailable)' to end of line 45.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall speak not only to our amendments, but to amendment No. 121, which was tabled by the right hon. Member for West Dorset (Mr. Letwin) and other Conservative Members. It might be helpful if I tell hon. Members that we believe the matter to be of importance and that, unless the Government are minded to make a significant movement in our direction, we shall press amendment No. 146 to a Division and encourage hon. Members to support us. If the hon. Member for Beaconsfield (Mr. Grieve) is minded to press amendment No. 121 to a Division, we shall support him and his colleagues.

This group of amendments is the first on the subject of fair trials. There is a lot of discussion in the press about fair trials abroad, but the amendments relate to fair trials at home—they relate to hearsay evidence. Later, we shall have an even more important, but equally central, debate about whether evidence of bad character may be brought into play and adduced during a trial. We believe that a common thread runs between this debate and that debate.

There are differences between the Liberal Democrat view, the Government's current view—it was not their position when they were in opposition—and the Conservative party's general view. In the past, justice was seen to be done in criminal trials because the prosecution had to make its case by bringing evidence and, unless that evidence was accepted, allowing that evidence to be tested by defence cross-examination. Trials were supposed to be held on the basis of evidence relating only to the charges before the court, not to the defendant's pre-history. The debates on hearsay evidence and evidence of bad character show that the Government's position has moved and—I am generalising a little—their current position is, "The more that can be put before a court, the better." They believe that it should be presumed that all evidence that might be relevant should be put before the court so that the judge or jury may reach a decision.

That is a proper and normal rule in the civil courts, in which people's liberty and associated punishments are not an issue and decisions are made about which party is liable for a specific activity. The civil courts weigh up evidence in favour and against each argument and traditionally reach a view on the balance of evidence. The same has never been true of the criminal courts, where the prosecution must prove a case beyond reasonable doubt rather than using a test of the balance of evidence. Society has rightly decided that convicting people wrongly is such a severe interference with their rights and liberties that a high hurdle must be negotiated before they are convicted. That is why the courts have adopted from common law—not from statute—rules on evidence that may be admitted, and Parliament has developed them.

My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I said many times in Committee that the rules of evidence are sometimes too complex. They need to be tidied up to make them more straightforward. We put on record the fact that codifying, clarifying and simplifying the rules of evidence is a good thing. We support codifying the rules of evidence, including hearsay evidence, but we do not support changing the rules of evidence to reflect the Government's starting point in clause 99. Under the clause, second or third-hand hearsay evidence will ordinarily be admissible unless exceptions apply. Such evidence is distinct from that heard from somebody who tells what they have seen.

We believe that second or third-hand evidence should not normally be admissible unless there is a good reason for it to be admitted. Our belief is based on a simple proposition: if a person repeats what has been said or what somebody else said was said, the accuracy of the original statement cannot be checked. We all know how statements change as they pass down lines of communication. Convicting on the basis of the evidence of someone who is not in court and cannot therefore be seen and heard and whose character cannot be judged by the judge or the jury means asking the court to place reliability on the evidence that makes it potentially equal to that of people who are in court and can be seen and heard. There is thus a danger of weighting the case against the defendant in a way that would not happen if the people whose evidence is cited had to be present.

We support the proposal that hearsay evidence should continue to be inadmissible unless specific conditions are fulfilled. We wish that the Government had kept to the view that the Law Commission recommended to them—it undertook a considerable piece of work and reported in 1997. It produced a draft Bill and 50 recommendations, and continued to support the traditional view that hearsay evidence would not generally be admissible, with exceptions.

I know the arguments for the opposite view because we have held discussions with the Under-Secretary and his colleagues, for which we are grateful. It is argued that if people believe in and trust the jury system, they must trust members of the jury to listen to everything and reach a fair judgment. That is superficially appealing, but there is a weakness in the argument. Nobody has ever claimed that the jury system is perfect. We have always argued that it is the best system, and that lay magistrates constitute the best system for the lower courts. The court is representative of the general public, and juries and lay magistrates can thus listen to the facts without bringing to the case the lethargy that can derive from sitting in court day in, day out. Lay magistrates and especially members of juries bring the experiences of their day-to-day lives to the court, listen to the case and judge on the facts. However, like everyone else, they have prejudices.

It is important not to include hearsay evidence because, although trial by jury is the best system, if jury members are given information that is less valuable, less able to be tested or irrelevant to the offence with which the person is charged, they may be improperly influenced and judge on the basis of bad evidence or evidence that they cannot test. That applies especially to evidence of bad character, which we shall consider later. We therefore trust the jury, but it should only be given evidence that it can properly examine.

We accept that the hearsay rules constitute some of the most complex and confusing parts of criminal law and that they need to be tidied up. We also accept that the Government want to ensure that, if possible, less time is spent on complex arguments about evidence on the conduct of cases. We support that proposal. If we can reduce the time it takes for cases to get to and through court by removing arcane and often prolonged evidence about minutiae, so much the better. I have said publicly to the Home Secretary that we have signed up to trying to codify that aspect of the law to make it simpler and to avoid the necessity for people to go from one part of criminal law to another. Reform is therefore acceptable to us. We are not being conservative or stick-in-the-mud, nor are we defending practices that do not work.

We are encouraged in our belief that our view is correct by the Select Committee on Home Affairs, which considered the matter and decided that it preferred the Law Commission's proposals to Lord Justice Auld's later proposals and recommendations. The Auld report was the immediate predecessor of the draft White Paper. We note that the Joint Committee on Human Rights is worried about whether, in some cases, a fair trial could be obtained and whether article 6 of the European convention on human rights would be breached. It is worried about trials in which convictions are based only on hearsay evidence. According to its report, no such case has gone all the way to the Strasbourg court. We are therefore slightly in the dark about the convention's effect.

All the organisations that have been consulted and represent regular practitioners have expressed anxiety about the proposals. They include the Legal Action Group, the Bar Council, Liberty, Justice—I declare that I am a member of its executive council—and the Criminal Bar Association. There is therefore significant concern; we are not simply making a party political point.

I want briefly to point out why the proposal is defective and to outline our suggestions for better legislation. The group of amendments is large and I do not therefore propose to go through it in detail. I appreciate that others wish to speak and that the debate is time limited.

Robert Marshall-Andrews (Labour, Medway)

Before the hon. Gentleman moves on to that matter, he was talking about convictions that are wrongly obtained as a result of hearsay evidence. Does he understand—as I do—that the provisions relate equally to the defence and to the prosecution, so that both will be able to take advantage of them?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I believe that that is right, and it could be argued that the proposed changes will produce equity of arms. I accept the hon. and learned Gentleman's point. I understand why the Government are concerned to ensure more convictions of the guilty: we all say amen to that. The issue before us, which motivates the Liberal Democrats' approach, is whether the drive to obtain that result will fail or, if it succeeds, whether it will do so at the expense of more convictions of the innocent. Sadly, there are already more than enough wrongful convictions in the justice system of England and Wales—the Bill does not affect Scotland—and we should be careful not to do anything that would increase the number of wrongful convictions.

Amendment No. 146 would return clause 99 to what it should be. As drafted, it states:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated",

and the qualifications are then set out—

"if, but only if . . . any provision . . . makes it admissible, . . . any rule of law preserved by section 103 makes it admissible, . . . all parties . . . agree to it being admissible",

and a fourth test follows. The amendment would turn that round, so the clause would read simply:

"In criminal proceedings a statement not made in oral evidence in the proceedings is not to be admitted as evidence of any matter stated"—

unless the subsequent conditions are met. It starts with the presumption that hearsay evidence will not be included unless it passes certain tests.

Clause 99 includes a judicial oversight provision, whereby the court has to be satisfied that

"despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible."

One problem that applies here and to later provisions on bad character is that when a judge hearing a case is given significant extra powers, it is bound to lead to greater variability—and therefore subjectivity—of decision on what counts as admissible evidence. If the rules are codified in statute, clear and predetermined, everyone knows where they stand. However, it is much more difficult to be certain about the consistency of justice if judges are given much greater flexibility to decide whether admitting evidence would be contrary to the interests of justice in a particular case.

Amendment No. 151 would add a qualification at the end of the long list of considerations—(a) to (i) in clause 99(2)—that the courts should take into account when deciding whether to include hearsay evidence—for example, how probative or important a statement is, or according to

"the circumstances in which the statement was made"

or

"how reliable the maker of the statement appears to be",

and so forth. That is fine as far as it goes, but those conditions are no substitute for having someone in court to ask them about what they said, which can be seen and heard by the jury. That is why the amendment would include at the end of the list the additional words:

"and the court shall in no event admit such a statement if it is of the opinion that, if the statement were admitted, any conviction of the defendant would as a result be based wholly or substantially on statements not made in oral evidence in the proceedings".

We are keen to ensure that we bring evidence to court—other than when it is agreed—and that people are not convicted on hearsay evidence rather than on direct evidence.

Vera Baird (Labour, Redcar)

The hon. Gentleman complained a moment ago that one problem was that the provisions would give more discretion to the judges. Amendment No. 151 would require a judge to decide what would be substantially the basis for a conviction if he admitted a further statement. That would be a very subjective judgment. What does the hon. Gentleman suggest the word "substantially" means in the context of the amendment?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. and learned Lady makes two points. First, of course the amendment involves judicial discretion, as is always the case when a judge determines matters of procedure. The amendment would improve the list that the Government give. If we are to have judicial discretion, for example, the amendment would ensure that that discretion does not allow people to be convicted—"wholly or substantially"—on evidence other than what has been agreed, and which is not before the court. The hon. and learned Lady knows better than I that a huge amount of evidence before courts is agreed by both sides beforehand. Vast numbers of statements are accepted without dispute.

Secondly, we may need to revisit the terms "wholly" and "substantially". "Wholly" is self-explanatory, but the word "substantially" is used regularly in criminal justice legislation to mean "nearly wholly". We could come up with proper definitions, but the point is that we must be careful that we do not start convicting people on the basis of evidence that is not substantially evidence before the court. I am sure that the hon. and learned Lady will agree with that, as the Joint Committee on Human Rights made the same point.

The hon. Member for Beaconsfield (Mr. Grieve) recollected vividly in Standing Committee a debate on emergency powers for Northern Ireland. There was a possibility that the law that was passed—happily, it has never been implemented—could have people convicted on hearsay evidence alone for terrible terrorist activities in the past. For example, that hearsay evidence could include what a police officer or member of the armed services had heard from members of the intelligence services. We can understand why people would not be keen for members of the intelligence services to be brought before the court, but one is getting into very dangerous territory if one allows people to relate second hand the basis for their belief that a person is guilty.

Edward Garnier (Conservative, Harborough)

I largely agree with the broad thrust of the hon. Gentleman's argument, but, in connection with amendment No. 151, would it not be better to allow the judge to make that decision at the end of the prosecution case, rather than before he knows what the whole of the prosecution case is? Not until the end of the prosecution case will the judge know whether a piece of evidence constitutes a substantial part of the case, or the whole of it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I accept that. Later, we will debate the stage at which applications can be made for a case to be dismissed. The hon. and learned Gentleman makes a valid point, with which our amendment is not inconsistent. Certainly, the matter should wait until the whole case has been seen, when, to put the matter bluntly, it will be possible to know how much evidence is direct, and how much indirect.

Edward Garnier (Conservative, Harborough)

I do not want to push at an open door, but the problem with amendment No. 151 is that it states that

"the court shall in no event admit such a statement".

It has to be admitted so that the judge can view it in the overall context of the whole of the prosecution case. That is the short point that I was making.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 151 seeks to deal with the Government's reversal of the proposition that we want to be the starting proposition. If we could go back to making the law say that hearsay evidence cannot be admitted except in certain specified cases, such a statement would be admitted at the time in the prosecution case when it fell to be admitted and the judge could then make an evaluation at half time, I would be happy with that and would withdraw amendment No. 151, because clause 99 would have been recast.

The final matter of significance, the multiple hearsay provision, is covered by amendment No. 106. I do not want to steal the thunder of the hon. Member for Beaconsfield, but the proposal is that there should be a provision to allow what might be called "double hearsay". Put simply, that amounts to A saying that B said that C shot the deceased. That is far removed from hearing evidence based on direct sight or sound in the court.

Although we have tabled amendments to the clause, we would support its removal, as I said. Multiple hearsay evidence is very thin evidence indeed. It is bad enough when someone says, "Bill Jones told me that they saw them breaking into the shop". If one never hears Bill Jones tell his story—if someone says Bill Jones heard that Amin Patel said last Tuesday that someone was breaking into the shop—it is seriously risky. We must be careful not to go down what is a dangerous slippery slope even with certain protections.

The law ought to be codified and tidied up. The Law Commission was right: the presumption should be that hearsay evidence is not admissible. The clause does not provide for that, which is why we tabled the amendment.

Dominic Grieve (Conservative, Beaconsfield)

This group contains a raft of amendments that touch on hearsay, which is one area that I have found extremely difficult.

Hilary Benn (Labour, Leeds Central)

indicated assent.

Dominic Grieve (Conservative, Beaconsfield)

The Minister helpfully indicates that he has too. When we dealt with the matter in Committee we found that it was one of those issues on which there was general agreement at the outset on the broad principle and everyone felt that the hearsay rules ought to be tidied up. The more one goes into the details of what is proposed, the more one has anxieties and reservations and tries to dismiss them from one's mind. I say that as a preliminary comment as I can assure the Minister that I am convinced that tidying up the rules on hearsay would be beneficial. Considering the totality of what is being proposed in this chapter, with which the various amendments tabled by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) and the amendment that I have tabled deal, I still have serious anxieties.

First, on the generality, which the hon. Gentleman mentioned, there appears to be a measure of agreement that hearsay evidence should be made more readily admissible. He rightly highlighted when speaking to his first amendment, which may be symbolic, that the wording makes hearsay evidence admissible whereas he would like to preserve the basic rule that it is not to be admitted except in certain circumstances. He may put that amendment to the vote and I shall support him if he does, not because I think that it makes a huge difference to the drafting of this part of the Bill, but because it gets the argument and discussion off to the right start. If that is the amendment that he chooses to put to the vote from this group, I will back him on it.

I shall focus, however, on the hon. Gentleman's amendment No. 154 to clause 104, which deals with "inconsistent statements", and is an amendment that has concerned me particularly. This is an example of an area where I have serious doubts about whether the House is doing the right thing. I shall explain why, although we did discuss this in Committee.

As the Minister knows, the present position is that if someone goes into the witness box and gives evidence that is inconsistent with a previous statement that he or she has made, that statement can be put to them—indeed, it can be put to them by the counsel who has called them, if necessary. The purpose of doing so is to destroy the witness's credibility and reduce it to zero. Having done so, no weight can be attached to what they have said in the witness box or previously. The witness is taken out of the picture in terms of the credibility of their evidence.

In clause 104, the Government have chosen to alter that principle completely. They have chosen to embark on a particular route, saying that, where there is a previous inconsistent statement, irrespective of who made it, that statement can be put to the witness to comment on, agree with or denounce. However, if a denunciation takes place, the court and jury can then be presented with the hotchpotch mixture of what the witness says in the witness box and maintains is true, and what the witness said previously in a statement to the police and claimed, at the time, was true. The jury can be invited by one side, the other side, or both, to choose which version they prefer and to treat that version as the truth. If they are satisfied that one version is the truth, they can, if necessary, convict a person on that evidence.

Taking that route may be tempting. In Committee, we discussed examples of witnesses who make detailed statements to the police that incriminate another person and lead to a charge being brought because the police investigation into the statement suggests that it is credible. The case then goes to court and, for reasons that often never emerge—perhaps to do with fear, intimidation, a change of mind, or the relationship with the defendant in the dock—the witness refuses to say anything or gives a totally different version of events, exculpating the defendant.

I am the first to accept that, in such circumstances, there is a great temptation to accept what clause 104 provides for and say, "Well, the previous statement should be allowed to stand as evidence, because that way we will get the conviction when the witness fails to come up to proof in the witness box." However, the more I have reflected on clause 104—and I reflected on it after the Committee stage as well as during it—the more troubled I have become by the principles that underpin it. The principle of our system of justice is that we invite juries to convict people if they are satisfied that they are sure that those people are guilty. If a person comes before a court and says—often quite articulately in my experience—that their previous statement was a load of rubbish and that what they are now saying is true, it is a bold person who can claim to be able to establish, when a witness has discredited himself or herself so thoroughly in that way, that any part of the statement should be accepted. The temptation is there, but the previous rule existed precisely because it was felt that that temptation could all too easily lead to a person being wrongly convicted. Perhaps the truth was that the original denunciator had lied to the police in a complex fashion because they had a grudge against the person, but had since changed their mind. We have all seen that happen in the witness box, yet we are about to establish a principle that allows someone to be convicted on such evidence.

I remain deeply troubled by this change in our legal principles. I wonder what advantage will accrue from it. Apart from anything else, I would have thought that any sensible judge, when faced with this situation and desirous of allowing justice to be done, would have to be overwhelmingly cautious in any summing up that he gave to the jury about the enormous dangers of convicting on such evidence. The issue bothers me, and I see that my hon. and learned Friend the Member for Harborough (Mr. Garnier) is nodding; he has experience of sitting as a recorder, as others in this Chamber may have. We should not be taking this route.

Robert Marshall-Andrews (Labour, Medway)

Much of what the hon. Gentleman says is right, but does he not accept that there is a contrary position here? Not infrequently, when witnesses first make their statements to the police, they do not inculpate the defendant. On the contrary, they do precisely the reverse. It is only after a period of time that they then make the statement on which a conviction or an indictment is based. If this clause becomes law, the previous exculpatory statement will be evidence of the facts in that exculpatory statement. Does the hon. Gentleman not accept that that, far from being a chain on liberty, will be a ball and chain for prosecutions for a great deal of time to come? If the intention was to remove civil liberties by means of this clause, it is, as with much else in this part of this Bill, a spectacular own goal.

Dominic Grieve (Conservative, Beaconsfield)

I always listen with care to what the hon. and learned Member for Medway (Mr. Marshall-Andrews) says. We had a discussion about this a moment ago with the hon. and learned Member for Redcar (Vera Baird). I concede that the matter can cut both ways in that it can be to the advantage of a defendant or of a prosecutor. However, I will say to the hon. and learned Gentleman—I dare say that he will rise to provide examples from his own practice—that if somebody gives a statement that is exculpatory, then subsequently appears in the witness box and gives an incriminating statement, as matters stand the discrediting of that witness will remove any ability of the prosecutor to rely on his evidence thereafter. In view of the fact that the burden is on the prosecution to prove its case, not on the defendant to prove his innocence, the defendant is pretty well protected by the principle that a prosecution witness can be discredited in that way and their evidence reduced to nothing.

I stand by my principles. Although I accept what the hon. and learned Gentleman says, I apply my own criterion that the advantage cuts both ways. I would not wish a witness who incriminates somebody in the witness box but has previously given an exculpatory statement to be in any better position in terms of his impact on the trial than if it were the other way round. Whichever situation arises, that witness should be disregarded. In my experience, however, if it is a prosecution witness who is destroyed in that way, the prosecution's case tends to go down the plughole unless there is some overwhelming and compelling other evidence against the defendant.

Vera Baird (Labour, Redcar)

The hon. Gentleman will be familiar, as I am, with the position whereby a young witness can now give evidence by having a video made of what they say to police officers outside court. That would be hearsay were it not for a specific statutory provision admitting it as the evidence-in-chief of a young person. I imagine that the hon. Gentleman shares my anxiety that it should be possible for far more witness evidence to be taken by video at the earliest possible stage. That will all be hearsay unless the rule mooted by the Government is passed, and what he suggests would stand in the way of that.

Dominic Grieve (Conservative, Beaconsfield)

I may have misunderstood what the hon. and learned Lady said. If clause 104 on inconsistent statements were to be removed, I do not see how that would in any way prevent what she is arguing for, which is the greater admissibility of evidence that is obtained outside the court setting. I was focusing on the matter only in terms of there being inconsistency between the one and the other. If I misunderstood her, I will gladly give way to her again.

Vera Baird (Labour, Redcar)

I think that I am looking at a slightly fuller picture. If the hon. Gentleman's problem is that he does not want to admit as evidence statements that are made out of court nearer the time, his obstacle would definitely be in the way of an expanded use of video evidence. That would inevitably mean that evidence taken on film soon after the event—highly probative and valuable material—could not be admitted because it was technically hearsay.

Dominic Grieve (Conservative, Beaconsfield)

I understand what the hon. and learned Lady says but that was not the point that I was trying to make. I am not against such evidence being admitted. Indeed, although I have expressed reservations about the whole picture as regards hearsay, I tried to focus on the details while admitting that I found the issue complicated—as does the Minister. I do not suggest that such evidence should not be admitted. I was focusing on the narrow issue: where there are two completely inconsistent statements—a previously made statement, whether on video or given to the police, and a subsequent statement, made when a witness appears in the witness box, that is wholly different and, indeed, inconsistent with the first one. It is not a question of saying, "I can't remember what I said on the earlier occasion", but of saying, "What I said on the earlier occasion is not the truth."

In those circumstances, clause 104 allows the prosecutor or the defence to say to the jury at the end, "I invite you to prefer what was said in the earlier inconsistent statement as being the truth," while the current rule is that the witness would have been so discredited that the judge would have to tell the jury to disregard that evidence completely. That is the point that troubles me.

Vera Baird (Labour, Redcar)

I think that we are talking about the same thing. In fact, there will be only one version, will there not, if rules come into force to allow for wider videoing of evidence outside court from, for example, victims of rape or domestic violence and others. The opportunity for an inconsistent version will come only during cross-examination, will it not? The hon. Gentleman might have a different point if equal evidential value is to be given to a statement taken outside court and evidence given in court. What happens in a situation where a witness makes a statement that something happened on Monday but, in the witness box, says that it happened on Tuesday? Surely, that would be the real problem.

Dominic Grieve (Conservative, Beaconsfield)

I was not necessarily thinking of examples such as that. We have all seen cases where, in court, witnesses change their recollection of events, which may be for completely innocent reasons. However, that is rather different from what I consider an inconsistent statement, which is when a witness says, "I saw the defendant hit his wife over the head with a pickaxe handle," but when he is in the witness box, he says, "The defendant was nowhere near the house at the time, he was actually down the pub with me". Currently, that would be the end of his evidence; it disappears from the picture. He is discredited and cross-examined and, unless there is other evidence, it may be the end of the case. However, under clause 104, that would not be the end of the case. The prosecutor would invite the jury to convict on the basis of the earlier statement. As an issue of principle, and mindful of the comments of the hon. and learned Member for Medway, that bothers me.

I am conscious that we do not have much time left to debate this group of amendments, so I want to turn to amendment No. 121, which relates to multiple hearsay. I have read and re-read what was said in Committee on this subject by the Under-Secretary the hon. Member for North Swindon (Mr. Wills), yet I remain concerned about this part of the Bill. It has been said that multiple hearsay can go on for virtually as many times as one likes. It is different in quality and nature from hearsay. For example, it is not: "Somebody has told me that something happened", but "Somebody has told me that somebody told him that something happened".

Although the provisions are hedged around with a number of restrictions, some of which I do not find easy to follow, it seems that at least part of clause 106 would enable some extremely strange things to happen. For example, it would enable a statement to be read out in court that an individual had been told by another person that the character and reputation of the defendant were that he was a villain in the area where he lived. The basis for reading out such a statement would be the unavailability of the witness who was to be called to give that evidence. The Minister will correct me if I have got that wrong, but that is my reading of the clause. If I may use a colloquialism, it is bonkers. I do not see what possible weight or credibility such evidence could have or what use it would serve. In fact, a great deal of prejudice could accrue because the evidence could never be challenged. Material would be put in front of a jury that was infinitely capable of misleading and had no probative value at all.

In saying that, I am conscious that clause 106 also covers provisions relating to business documents. The Minister may remember—I do not recall whether he was present—that in Committee I said that I was extremely satisfied with the way in which business documents are admitted as hearsay evidence in criminal cases. I regularly use that principle under current law and I am satisfied that it works, so I assure the Minister that that is not what I am aiming it. However, the clause goes much further. I have not sought to redraft the clause, because redrafting it is beyond me, but I am convinced that the example I have given—if it is correct—is one that I am not prepared to tolerate arising under the Bill. If we go down that road, we will expose ourselves to cases in which material is placed in front of juries that can never be challenged and is highly prejudicial, deeply tendentious and unreliable, because it has passed through a number of persons or statements before it appears in front of the jury. However, I specifically exclude business documents from those comments.

Time has passed. I hope that the Minister is able to respond, but I am minded to ask the House to divide on the amendment.

Vera Baird (Labour, Redcar)

The hon. Gentleman has given an example of a case in which I should have thought it intensely unlikely that anyone would try to rely on multiple hearsay about someone's reputation, so perhaps it is not a proper way to test the efficacy of the provision. I have thought of an example in which multiple hearsay might be advantageous. It closely resembles a case that I put to him in Committee, but takes it one step further.

The hon. Gentleman will remember my describing a case in which someone is killed by having his throat cut and with his dying breath says to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), "Dominic Grieve did it." I arrive on the scene a second later, ask the hon. Gentleman, "Who did he say did it?" and he replies, "Dominic Grieve." Then something happens—may it not—to the hon. Member for Southwark, North and Bermondsey. The likelihood of the deceased or the hon. Gentleman lying in the heat of the moment is remote. The evidence is second-hand hearsay but it would be admitted under the provision, and rightly so.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady makes an interesting and persuasive case on an example. Equally, she accepted that the example that I gave was one that, if it arose, would cause her some concern. I believe, however, that the Bill as drafted will have that effect.

I shall invite the House to delete clause 106. In doing so, I am saying not that the clause is valueless, but that as drafted it is unsatisfactory. If the Minister assured me that the Government will re-examine the provision, I might change my mind. However, my current intention is to vote against it, because it is likely to cause harm that will outweigh the benefits it generates.

Robert Marshall-Andrews (Labour, Medway)

I rise briefly to congratulate the Government. In the field of criminal justice, that is such a rare and beautiful thing that I cannot resist the opportunity to do so. Unhappily, in that field one often has the sadness of saying that the Government attack civil liberties and the liberties of individuals either through the substantive law or through the law of evidence, which we are discussing. However, on this occasion, the Government are making a serious attempt not to disadvantage the defence but seriously to disadvantage the prosecution.

Let me expand that point in general terms. Many safeguards are built into this part of the Bill. The truth is that the judge—any judge—simply will not admit hearsay, let alone double hearsay, in circumstances in which it is unfair or likely to lead to an injustice. Because of the European convention, the provisions apply on both sides, but whereas the Crown, by reason of the forces it has at its disposal, rarely has difficulty obtaining first-hand primary evidence and will therefore be locked out by the judge if it attempts to bring in secondary or hearsay evidence, the same does not apply to the defence. A defence application to call hearsay evidence on the basis that the defence has been unable, given its best endeavours, to obtain the primary evidence is therefore much more likely to find favour with a trial judge. I say that after having prosecuted in my quite long professional life at least as many serious criminals as I have defended—I am pleased to say with almost the same rate of success.

As prosecution counsel, it causes me very considerable concern that, at the end of a case, a defendant—and, let us postulate, a serious and professional defendant—with very little by way of defence will be able to adduce evidence before the court and say that Joan will be called to say that, in a conversation that she had with Mrs. Kray, Mr. Kray said that he had done it. Of course, neither Mr. Kray nor Mrs. Kray will be available, for the very good reason that they are on the run.

At the moment, quite rightly, such evidence would be wholly and completely inadmissible. If the provisions are passed, it is extremely likely that it will be admitted and that a cast-iron case against very serious criminals will fall because of this piece of civil libertarian legislation. I suspect that that was what the Home Office and Home Secretary had in mind when they engineered the measure, and as I say, a wonderful thing it indeed is, if somewhat aberrent, given the general track record. If the provisions are passed, what we are likely to see is, I regret, injustice being done, but not to the defence.

Having congratulated the Government in that fulsome way, I shall say straight away that I shall not vote for the provisions. I shall not do so because I would not dream of voting for provisions that, if they are put into effect, will give effect to matters and measures that the Government do not intend. To that extent, I will abstain. I suspect that the provisions will be brought into effect and eventually be put into effect by the courts, and that the prosecution and the Government will find in the fullness of time, I am sorry to say, that they have scored—if I may repeat the metaphor—a spectacular own goal.

Edward Garnier (Conservative, Harborough)

I shall be very brief, because I think that the knives come down at 4.20, which will leave four whole groups of amendments undiscussed. I think that it is an outrage that this House is permitting this Bill to go through largely undiscussed. I hope that the other place bears in mind what I have said and the procedures that we foolishly adopt in this House in considering such legislation.

There is a spurious attraction to what the hon. and learned Member for Medway (Mr. Marshall-Andrews) said; he is an accomplished after-dinner speaker, and we are a long way before dinner, but I think that that was one of his better contributions to the art of after-dinner speaking.

I wholly accept the arguments advanced by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Member for Southwark, North and Bermondsey (Simon Hughes), and I ask the House to reject the provision as it is currently drafted by the Government. It comes out of the school of saloon bar legislation that says "It stands to reason, guv; somebody said that he's guilty, so he must be guilty." We should be extremely careful, because hearsay and rumour are very close relations, and if we are to start convicting people on the basis of rumour, we might as well pack up and go home.

Hilary Benn (Labour, Leeds Central)

There is a great deal to respond to and I have a very short time in which to do so, but I shall do my best.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) prefaced his remarks by speaking about the importance of the fundamental principle in our criminal justice system that, in the end, a case has to be proved beyond reasonable doubt before somebody can be convicted and potentially deprived of their liberty. It should not need saying, but, as he raises the issue, it would be remiss of me if I did not make it absolutely clear that none of the provisions on hearsay, which we are debating, nor any on bad character, which we will come to shortly, changes that one iota. That remains the bedrock on which our system is based.

I concur wholeheartedly with the comment made by the hon. Member for Beaconsfield (Mr. Grieve), who admitted to the highly complex nature of the law on hearsay, and other hon. Members in the Chamber at the moment are better qualified and have much more expertise than I do. Notwithstanding that fact, I wish to say that, like the Law Commission, the Government accept that hearsay evidence is generally less satisfactory than first-hand evidence, but there may be cases where that is not so and there are other cases in which it is all that is available and should therefore be considered by the court. That is the issue with which the House has to grapple, and all hon. Members recognise that, after careful consideration, the Law Commission said that the present law was not only exceptionally complex but difficult to interpret. That is what the Bill seeks to change.

The second issue that I want to address is the difference between the inclusionary as opposed to the exclusionary approach because it will have salience in a later debate, when we shall argue, in essence, about the same principle. In effect, the relevant phrases are "admitted, but only if" as opposed to "not admitted unless". I think that I am right in saying that the hon. Member for Beaconsfield said in passing that in one sense that does not make a lot of difference, and I agree with him. So we should focus our attention on whether we have the right safeguards to cover the circumstances in which there is general agreement that hearsay material should not be admitted.

Thirdly, I agree with the argument that we should seek to trust juries in weighing all the evidence that they have before them, in reaching a judgment and deciding whether they can reach a verdict that is beyond reasonable doubt. The hon. Member for Southwark, North and Bermondsey advanced that argument and then attempted to knock it down. I shall give a practical example because it is very hard, given the complexity of the issue, for non-lawyers to understand precisely what we are talking about.

I shall refer to the celebrated Kearley case. During a police raid on a suspected drug dealer, a number of people either called at the door or telephoned the house asking for drugs. Not surprisingly in those circumstances, the dealer's clients were not willing to give statements to the police officers who opened the door. The Court of Appeal held that the prosecution was wrong to rely on that evidence because it was inadmissible hearsay. In summing up the issues in that case, however, Lord Justice Griffiths stated:

"I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply 'then the law is an ass'"—

and I agree with him. That is the issue with which we are wrestling and which the Government are seeking to address in these clauses.

The Government's belief in the need for inclusionary reform, which is the central thrust of the proposals, is supported by the Runciman royal commission, which concluded that hearsay evidence should be admitted to a greater extent than at present, and by Sir Robin Auld, who proposed that hearsay should be generally admissible in criminal proceedings. The terms of rule are almost but not completely consistent with the Law Commission's widely supported proposal that there should be automatic admission for certain categories of evidence, with judicial discretion to admit other cogent and reliable evidence.

The final point that I want to make is that clause 99 makes it absolutely clear that such evidence will be admitted only if the relevant criteria apply. We believe that this is a sufficient safeguard and that the many proposed amendments would send out the wrong signals to the courts on how they should approach this issue.

Amendment No. 149, which was not directly addressed, would have serious implications for a swathe of evidence in our criminal courts, including the common law categories which have—

It being three and a half hours after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question necessary to dispose of business at that hour pursuant to Order [this day]

Clause 119 — Interpretation of Chapter 2

Schedule 6 — Hearsay Evidence: Armed Forces

Clause 125 — Interpretation of Chapter 3

Clause 85 — Defendant's Bad Character

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 29, in page 54, line 11, leave out Clause 85.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following:

Amendment No. 30, in page 54, line 13 leave out

'admissible, if, but only if'

and insert 'not admissible, unless'.

Amendment No. 33, in page 54, leave out lines 15 to 27 and insert

'or

(b) it has substantial probative value in relation to an important matter in issue between the defendant and a codefendant.

(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—

(a) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(b) it is important explanatory evidence,

(c) it is evidence of the defendant's conviction for an offence of the same description or of the same category, as the one with which he is charged,

(d) it is relevant to an important matter in issue between the defendant and the prosecution,

(e) it is evidence to correct a false impression given by the defendant, or

(f) the defendant has made an attack on another person's character.

Amendment No. 168, in page 54, line 19, leave out paragraphs (d), (e) and (f).

Amendment No. 133, in page 54, line 19, leave out paragraph (d).

Amendment No. 34, in page 54, line 28, leave out 'subsection (1)' and insert 'subsections (1) and (1A)'.

Amendment No. 35, in page 54, line 29, leave out '(1)(d), (e) or (h)' and insert '(1A)(c), (d) or (f)'.

Amendment No. 126, in page 54, line 29, leave out '(d), (e) or (h)' and insert

'(c), (d), (e), (f) or (h)'.

Amendment No. 23, in page 54, line 30, leave out from third 'the' to 'that' in line 32 and insert

'potential probative value of such evidence is so outweighed by its prejudicial effect'.

Amendment No. 24, in page 54, line 33, leave out subsection (4) and insert—

'(4) In considering the probative value of such evidence the court is to have regard, in particular, to

(a) the extent (if any) to which the evidence tends to suggest that the defendant has a propensity to act in the specific manner alleged;

(b) any similarities between the facts revealed by the evidence and those now alleged;

(c) the extent to which any similarities may be attributed to coincidence;

(d) any dissimilarities between the facts revealed by the evidence and those now alleged, and

(e) the passage of time between the matters to which the evidence relates and the matters now alleged.

(4A) In considering the prejudicial effect of such evidence the court is to have regard, in particular, to

(a) the risk of the tribunal of fact attaching undue significance to the evidence in question in determining the defendant's guilt;

(b) the risk of the tribunal of fact convicting the defendant on the basis of his previous conduct rather than because they are satisfied of his guilt in relation to the matters now alleged;

(c) any disproportion between the gravity of the conduct revealed by the evidence and the gravity of the matters now alleged; and

(d) the risk that such evidence will confuse or distract the tribunal of fact.'.

Government amendment No. 134A.

Amendment No. 125, in page 54, line 38, at end insert—

'(6) A person shall not be convicted of an offence solely on the basis of evidence of his bad character.'.

Amendment No. 51, transfer clause 89 to end of line 38 on page 54.

Amendment No. 36, in clause 86, page 54, line 40, leave out '(1)(c)' and insert '(1A)(b)'.

Amendment No. 134, in page 55, line 1, leave out clause 87.

Amendment No. 37, in clause 87, page 55, line 2, leave out '(1)(d)' and insert '(1A)(c)'.

Government amendment No. 95.

Amendment No. 38, in clause 87, page 55, line 11, leave out '(1)(d)' and insert '(1A)(c)'.

Amendment No. 39, in clause 88, page 55, line 13, leave out '(1)(e)' and insert '(1A)(d)'.

Amendment No. 40, in clause 88, page 55, line 22, leave out '(1)(e)' and insert '(1A)(d)'.

Amendment No. 41, in clause 89, page 55, line 25, leave out '(f)' and insert '(b)'.

Amendment No. 42, in clause 89, page 55, line 32, leave out '(f)' and insert '(b)'.

Amendment No. 43, in clause 90, page 55, line 34, leave out '(1)(g)' and insert '(1A)(e)'.

Amendment No. 44, in clause 90, page 56, line 21, leave out '(1)(g)' and insert '(1A)(e)'.

Amendment No. 45, in clause 90, page 56, line 23, leave out '(1)(g)' and insert '(1A)(e)'.

Amendment No. 46, in clause 91, page 56, line 25, leave out '(1)(h)' and insert '(1A)(f)'.

Government amendment No. 135.

Amendment No. 47, in clause 91, page 56, line 43, leave out '(1)(h)' and insert '(1A)(f)'.

Amendment No. 48, in clause 92, page 57, line 3, leave out from 'under' to 'and' in line 4 and insert

'paragraph (b) of section 85(1) or any of paragraphs (b) to (f) of section 85 (1A),'.

Amendment No. 49, in clause 91, page 57, line 25, leave out from 'under' to 'and' in line 26 and insert

'paragraph (b) of section 85(1) or any of paragraphs (b) to (f) of section 85 (1A),'.

Amendment No. 50, in clause 96, page 58, line 30, leave out '(f)' and insert '(b)'.

Government amendments Nos. 96 and 138.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendments Nos. 29, 30 and 168 are Liberal Democrat amendments. I am conscious that amendments that colleagues from other parties have tabled are in the same group.

We believe that we are embarking on today's most important debate on the Bill. We are considering whether evidence of a defendant's bad character in the criminal courts should be admitted and if so, under what circumstances. The amendment would remove clause 85, which changes the current rules for the worse and alters the historical position of the courts in England and Wales that a defendant's bad character is not generally used as evidence. Under the Bill, such evidence would be used much more frequently.

We could have tabled many amendments. In Committee, we sought to amend clause 82, which defines bad character, and clause 85 and others. In common with Conservative Members, we argued strongly that the right to a fair trial depends on the evidence relating to the case before the court, not the evidence pertaining to aspects of a person's previous life. Some evidence pertaining to considerations that go much wider than criminal convictions will be admissible under the Bill, and we believe that that aspect of the Government's proposals poses the most serious threat to a fair trial.

David Cameron (Conservative, Witney)

The hon. Gentleman said earlier that he was in favour of codifying existing law, and much of clause 85 is about codifying the legal admissibility of evidence relating to bad character. If he opposes only some aspects of bad character being admissible, would it not be better to amend the provision rather than scrap it completely as the Liberal amendment suggests?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a perfectly reasonable proposition. I have said on the Floor of the House and elsewhere that our party would be happy to seek agreement with the Government and Conservative party on the codification of the criminal law. We have two amendments to clause 85. One sets out our preferred option, which is to remove the provision entirely and start with the presumption that evidence relating to previous bad character should not be admissible. The clause gets off on the wrong foot by presuming that such evidence should be admissible, which is why merely amending it would not suffice. If we lose that argument—we are aware that we will lose the vote today, but we might not lose so readily in the other place, where the Government do not have a majority—we have a second proposition before the House, which would remove paragraphs (d), (e) and (f), which are the most iniquitous in the list of exceptions.

The amendment tabled by the hon. and learned Member for Redcar (Vera Baird) would remove paragraph (d), which we view as the worst of all, so we would support her amendment if pressed to a vote. We would prefer to go further, but I see in their places the Chairman of the Home Affairs Committee and other Labour Members who recognise the iniquity of that part of the proposal, and we would join forces with them, too. The Conservative amendments do not go as far as we would wish and we were nervous of supporting them for fear that it might prejudice our stronger and better amendment, but, depending on the Government response, we might be able to support some of them.

There is widespread opposition throughout the House—from members of the Home Affairs Committee, Labour Back Benchers and both main Opposition parties, and, indeed, from the hon. Member for North Down (Lady Hermon) on behalf of her party and from the two nationalist parties—to the Government's proposals. We should emphasise that those proposals are strongly objected to both inside and outside Parliament. I hope that the Government will hear the opposing voices and realise that they cannot deliver their proposal through Parliament. The sooner they recognise that and accept that their proposals represent a dangerous threat to the rights and liberties of defendants, the sooner we can engage in an honest and constructive debate about the best way of codifying this part of the law, as the hon. Member for Witney (Mr. Cameron) suggested.

It would be dangerous to allow evidence of bad character to be put before a court as often as the Government suggest because it would mean that people would be judged on their previous history rather than on evidence pertaining to the case before the court. Before I define the wider aspects of bad character, I want to explain why that is so dangerous. Wittingly or unwittingly, when the police are trying to find someone who has committed a crime, they will think about people found guilty of similar crimes in the same area. They are bound to do so: that is a perfectly proper aspect of policing. Sometimes, however, after an initial investigation of the evidence, it is difficult to find the person who is obviously guilty of the crime. Investigations can go on for a long time, with the police getting more desperate to bring someone to book. I understand that too.

If it is possible for the police to bring previous bad character before the jury, it will be much easier for them to go down the route of the usual suspect. There will be an incentive for the police to say, "We know character X has done this sort of job in this area 17 times before. Let's pull him in and question him, because he is the best idea we've got."

When the Crown Prosecution Service comes to look at the evidence, it has to decide only whether the chance of conviction is better than 50 per cent., and whether it is in the public interest to prosecute. If the CPS knows that previous bad character will be brought into play, it may decide that the chance of conviction is better than 50 per cent. as the jury will hear about the defendant's previous bad character. The CPS may believe—I hazard the suggestion that it always will believe—that it is more likely that a person will be convicted if the jury knows that he or she has previous convictions.

Few people would consider a jury less likely to convict if its members knew that a defendant had previous criminal form. Regular offenders—the usual suspects—are therefore much more likely to be at risk. That means that the people who have form—who have committed offences and been tried and convicted, but who have gone straight and tried to rebuild their lives—will be at much more risk of being brought back to court, tried and wrongfully convicted. There have been far too many such examples throughout out legal history.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Is the hon. Gentleman aware of the research undertaken at Birmingham university for the Lord Chancellor's Department? Sally Lloyd-Bostock, professor of law and psychology, showed conclusively that juries are biased by learning about previous convictions for similar offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am aware of that research. It is not the only research on the matter. To my certain knowledge, the Home Office has done similar research, I think in 1995. Ministers accepted that research as relevant, and it comes to exactly the same conclusion.

My second point relates to a matter that arose in the previous debate. Juries could be given people's previous life histories. We could believe that juries, on hearing the judge's direction, would focus only on the matter in front of them—that is, in the charge before the court. However, juries are not perfect either. Like the rest of us, they are open to recollection of things that they have heard or seen. All the evidence and all one's instincts suggest that allowing a defendant's bad character and previous convictions to be referred to much more frequently is bound to have the prejudicial effect that the research suggests.

That will be especially true in the more sensitive and controversial cases. For example, a person who was guilty in the past of a serious sexual offence such as rape or indecent assault might be brought before the court again. Understandable and proper public disapprobation and disgust about the previous offence mean that jury members cannot help but have that offence in mind as they hear the evidence in the new case. I cannot see how, even with all the encouragement in the world from the judge, they would be able to eliminate that previous conviction as they thought about whether the evidence meant that the person was guilty of the new offence. Knowledge of previous cases must colour the jury's perception of the person and of the charge.

The other argument is that reference to previous convictions should be allowed because a person who has robbed a petrol station six times shows a propensity to rob petrol stations. If the case before the court is a petrol station robbery, that propensity might be taken into account. However, the conclusion may not be valid, depending on how long ago the previous offences took place, and on whether the defendant was on drugs at the time, for example. Other questions involve whether that person had given up drugs since those previous offences, or whether any treatment that he received was effective or otherwise. Equally, though, other people with the same propensity will not have been pulled up before the court, so the arguments for the provision are weak indeed.

If present law stated that one could never introduce bad character, there would be a strong argument for the provision, but the law does not state that; it allows bad character to be introduced in all sorts of circumstances, as we all agree. For example, it is introduced when a defendant brings it into play—when a defendant attacks a witness for the prosecution, whether it be a police officer or anyone else, they automatically lift the veil on their own character, which gets into the frame. Similarly, it is introduced when there is similar fact evidence—most commonly, in sad and awful rape cases involving a serial rapist who is always associated with, for example, gloves, clothes, or a certain time of day, or who always attacks a certain type of person. If there is such a set of characteristics, it can be used in court. That argument is proper and acceptable but the evidence has to be directly, not indirectly, relevant. Sadly, the clause goes beyond that.

We want the clause to be amended. The proposals go far too wide. The list in clause 85(1) contains three proposals that would allow almost anything in, subject to the qualification of judicial oversight. The first is that

"In criminal proceedings evidence of the defendant's bad character is admissible if, ... (d) it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged."

That means that if anyone once takes a car without consent, steals, robs or assaults, that can be used in court, as it would be evidence of

"conviction for an offence of the same description".

Secondly, a previous conviction can be used if

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

Many issues are important matters that are disputed between the prosecution and the defence. That provision would allow a great swathe of previous evidence of bad character to be used. The defendant would have to show why it should not be admitted. The presumption would be that it should be.

Thirdly, such evidence would be allowed if

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

Another tranche of previous bad character could be admitted on that basis.

That is why the second of our amendments to clause 85 would delete those three provisions. The provisions in clause 85(1)(a), (b) and (c) are reasonable. They involve evidence that both parties agree is admissible or that is used because the defendant's bad character comes into play—one cannot expect other people not to put one's character into play in that case. Thirdly, it is important to explain things. Those provisions are reasonable, whereas those in clause 85(1)(d), (e) and (f) are not.

I hope to persuade colleagues how dangerous this provision is. If it was only a matter of previous convictions, that would be difficult and dangerous enough. However, clause 82, states:

"For the purposes of this Chapter, evidence of a person's bad character is evidence which shows or tends to show either that . . . he has committed an offence, or"—

this is the wider and even more dangerous proposition—

"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."

Someone might have got drunk, which might be relevant and could be used in court in an action if the charge was acting under the influence of drink. Someone might have been unfaithful to their spouse, which is quite properly not a criminal offence but might be used as evidence against them if they are charged with a sexual offence involving someone who is not a member of their family. Someone might have lost their job because of a row about whether they had behaved honestly. That could be used as evidence if the charge was dishonesty.

One of the great abiding characteristics of the justice system in this country is that one is judged on the merits of the case that is brought to the court on the day that one appears as a defendant. The right to a fair trial is one that all of us may need at some stage. Nobody ever knows when they will be charged or arrested, or when they may find themselves as a defendant in a case. It is not a right for minorities only and it is not a right for the regular suspects only; it is a basic right that is upheld in domestic law and respected by the international legal conventions in Europe and beyond. In our view, if the right to have one's previous history generally excluded is taken away, and if the guarantee that one will be judged on the evidence that is brought by the prosecution in the court is taken away, there are huge dangers of regular, unfair convictions and of people being retried for things for which they have served their time in some way or another in the past. That is a very dangerous road to go down. We hope that the House will accept amendment No. 29, and we hope that the House will ask the Government to think again.

David Kidney (Labour, Stafford)

I have amendments in this group, starting with amendment No. 33, which are not quite so drastic as the Liberal Democrats' proposal to delete the whole of clause 85 and not quite so mild as the Government's position. I am steering a middle way, which should attract the Minister to my proposal.

The Government are sometimes unfairly portrayed outside the House as introducing measures that will allow juries access to people's bad character in circumstances where that is not at present admissible. That portrayal is not quite correct. Evidence of bad character has been admissible for more than 100 years. It is important that we understand that the law has developed in that way. At the moment, there are three circumstances in which such evidence may be heard: first, if the facts of a previous incident are so strikingly similar to the facts of the case before the court that there must be something more to it than coincidence; secondly, if the defendant asserts good character whereas, in fact, the defendant does not have good character; and, thirdly, if the defendant attacks the character of another witness—usually a prosecution witness—and therefore becomes open to having his or her own character attacked through bad character evidence as well.

Those are the circumstances in which evidence can be heard; I now want to talk about what evidence can be heard. Bad character evidence covers more than previous convictions—that is an important point, because some people do not appreciate it. Acquittals were held to be admissible in a case called Z; and evidence which the judiciary now calls "background information" was held to be admissible—whether that involves a previous conviction, an acquittal, or neither of those, but something else that suggests that it is relevant—in cases called Stevens and Dolan.

What is wrong with the Liberal Democrat amendment to delete the clause and leave the law as it is? To answer that, I turn to report 273 of the Law Commission, which did a good job on our behalf of analysing the present state of the law. It found, first, that the law is in lots of different places and is difficult to find; secondly, that the law is in rather obscure language and is difficult to interpret; thirdly, that judges have inconsistently applied the provisions in the past; fourthly, that, as a result of a combination of factors, evidence is not being admitted in lots of cases where it really should be, to help the court to make its final decision; and, finally, that, because the situation is not satisfactory, judges are developing their own law. I have just referred to some case law that shows areas where judges have started to allow evidence to be admitted in ways that are not covered in any previous Acts of Parliament.

The Law Commission did a pretty good job of convincing us of the need for reform. Codification was mentioned earlier. The Law Commission drafted a Bill that brought all the provisions into one place, and I commend the draft Bill to those who have not seen it. I think that it is excellent. If I could adopt it wholesale, in place of the Government's provision, I would. My amendments are inadequate to replace the Law Commission's excellent draft Bill.

The structure of the Law Commission's draft Bill is based on the premise that there are some circumstances where evidence of bad character should always be admissible. It describes one as being where it concerns the central facts of the case before the court and goes on to describe the two about asserting good character and challenging other people's characters effectively. The Law Commission felt that it should be stated that those are admissible in every case, but that in every other situation the leave of the judge should be the gateway to allowing such evidence to be admitted in any trial as evidence against the defendant. That is the point of my amendments and the opinion that I hold.

The Law Commission's view was that leave of the court should be sought in every case except for those few that I mentioned. I had thought that that was the position taken by the Government following their comments in the White Paper, "Justice for All", paragraph 4.56 of which states:

"We favour an approach that entrusts relevant information to those determining the case as far as possible. It should be for the judge to decide whether previous convictions are sufficiently relevant to the case, bearing in mind the prejudicial effect."

There was I thinking that the Government agreed with the Law Commission that leave of the court should always be sought.

What are the dangers of more routinely admitting evidence without leave of the court? The hon. Member for Southwark, North and Bermondsey (Simon Hughes) drew them out clearly. For a jury, there is the danger of false logic—that because the person has previous convictions, he or she must have committed the offence that is before the court. There is also the danger of prejudice—that because the person has been convicted of something dreadful in the past, he or she must have committed the offence that is before the court. I am talking about juries, but magistrates try many cases and would thus hear evidence of previous convictions.

The hon. Member for Southwark, North and Bermondsey mentioned the research that has been carried out. It is referred to as the Oxford research, because it was carried out at Oxford university, not at Birmingham university. The research tested whether mock juries who were presented with situations involving disclosure of previous convictions were prejudiced: the answer was overwhelmingly yes. The annexe to the Law Commission's report contains an update of the Oxford study, whereby 222 magistrates were put in the same position as those jury members to find out whether they were prejudiced by previous convictions: the answer was yes, to about the same extent as the jury members.

The only difference between the two studies was that, in the question about prejudice resulting from previous convictions, jury members were very prejudiced if they learned that someone had a previous conviction for indecent assault on a child, so whatever the offence before them, the person was considered guilty if they had such a conviction. Magistrates took a different view—a section 18 assault made them very prejudiced against the accused whatever the charge before them. With that one difference, it is a danger for all defendants.

The hon. Member for Southwark, North and Bermondsey dealt with the other two dangers of more routinely admitting such evidence, the first of which concerns sloppy preparation of cases for trial that relies on prejudice being enough to get the case through. The danger there is that if, for whatever reason, prejudice does not operate, a person is acquitted who should not have been because the case was not properly prepared. The fourth danger is that of the police rounding up the usual suspects—a lazy option that should not happen.

My amendments are an attempt to restore the Law Commission's draft Bill in the sense that, of the list of types of admissible evidence in clause 85(1)(a) to (h), two roughly equate to some of the Law Commission's recommendations on where leave should not be needed—(a) and (f)—and I would put those separately as being admissible evidence in every case. For all the others, I would say that for the evidence to be admissible, leave of the court is required and evidence must be relevant to the trial before the court.

The Minister and I have behaved in a gentlemanly way by exchanging correspondence about my amendments. Sadly, he could not bring himself to accept them. That is a shame, but it is his decision. His view, to summarise his letter, is that the Government want to send out a message that bad character evidence will be admitted in most cases, but there are safeguards in the Bill for those cases where it should not be admitted.

The safeguards are not very thorough, however. For example, only under paragraphs (d), (e) and (h) is there any protection at all. It is that the defendant is supposed to spot that the evidence is to be used against him or her in the trial and to object before it is revealed. The judge then has to consider whether the evidence would have

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

That is a narrow test and a high hurdle for the defendant to overcome. I do not want defendants to be acquitted when they are guilty, but such provisions tilt the balance a little too much in favour of the prosecution.

My proposals seem to have attracted quite a lot of support ahead of today. Perhaps the Minister does not receive all the briefings that are sent to the rest of us, but in several of them, including those from the Bar Council, the Law Society, the Legal Action Group, Liberty and the Justices' Clerks Society, there is either specific reference to my amendment and support for it, or the position taken seems to equate to my amendment in that those bodies want there to be leave of the court before such evidence is admitted.

The submission of the Justices' Clerks Society was prepared in February before I tabled my amendments, so the society was not saying that it agreed with me. However, I appreciate and agree with its summary, which states:

"It is a question of finding the right balance, and, on balance, the Society has profound reservations about routinely admitting evidence of bad character which, albeit that some relatively complex qualifications and criteria are contained within them, the provisions are designed to accommodate. If the law is to be amended, the Society would prefer any changes to be more closely aligned to the Law Commission's recommendations."

I take that as a strong endorsement of my position.

I pray in aid the Law Commission. In terms of independence and authority, there is no better body. It has considered the matter in great detail and appeared to have everybody's approval when it published its report and its draft Bill. It is a pity that we have moved away from that draft Bill and I should like it to be restored.

John Gummer (Conservative, Suffolk Coastal)

I rise to tell the House of my recent experience of defending a constituent who was prosecuted and, in the end, executed in the United States. During that experience, I saw the operation of a law that allows precisely what is currently being proposed. It is easier to accept such provisions when people cannot suffer such unacceptable punishment, but I still feel that it would be an extremely dangerous road down which to go.

The first reason for that is the question of bias. Sometimes, one feels that one does not need a great deal of evidence for something that is self-evident. It is extremely hard to believe that juries or magistrates should be put into a position in which, having heard evidence of previous bad character, or something that would currently not be admitted, they would have to put it entirely behind them and consider only the evidence before them. There is something fundamentally odd about that.

Of course, as others have said, evidence of previous convictions or of bad character is admitted in certain circumstances, but they are clearly circumstances that any rational person would see as reasonable: that is, where the specifics of the case so parallel the one before the court that it would be an amazing coincidence for someone different to have behaved in that series of ways on, for example, the fifth occasion. The circumstances must be such that most rational people would say that it was odd to keep the knowledge from the court as it would obviously be of value. The current proposals would go significantly beyond that, however, and with only extremely limited protection.

Let me draw the House's attention to an issue that arose when I was Secretary of State for the Environment and responsible for granting final planning permission for supermarkets at a time when we were seeking to restrain out-of-town development. I instructed my officials to remove from the documents the name of the supermarket involved in the application because I knew that there were some supermarkets that I thought did a good job and some with which I was less satisfied, and I knew instinctively that I would be more willing to grant planning permission in certain cases and less willing in respect of some other companies. I am being very delicate and not referring to Walmart. The fact remains that I knew that I had an instinctive concern. That caused me two difficulties: on the one hand, I might be biased in favour of someone, and on the other, I might make myself biased in favour of someone lest I admit of a bias. I sensed much greater difficulty in making an honourable and decent decision, so it was far better not to know certain things. The first problem facing us now is that we are making it difficult for decent jurors and magistrates to strike the balance that they want to strike.

Secondly, I am concerned about the police and the general forces of law and order. To return to the case of my constituent, he had been guilty when he was very young of being in some sense part of a group of young people in which a fatal shooting occurred. He was being prosecuted for an entirely different murder—one that, having read all the documents, I am entirely convinced he did not commit. However, when the police came to decide who among the group of young people they should prosecute, it was far easier to prosecute the man who had form, even though it was acquired through a wholly different and unconnected circumstance. It is arguable that that form proved that he was less likely to have done what he was now accused of having done, but it was easier for the police to say, "Well, this chap has form and we've got another chap who's prepared to bear witness against him, so we'll go for it." I am not suggesting that the British police in any circumstances would do anything of that sort, but I would prefer it to be beyond peradventure. It strikes me that the provision is too dangerous an element to have in the Bill. The problem was summed up for me by the senior law officer who said to me, "Well, you know, Mr. Gummer, he may not have done this thing, but he isn't a very nice man and we know that, and it would be better to have him off the streets." There is an element that takes that view.

Now I will say something unkind, albeit extremely carefully, about the Government. I think that the Government have taken this issue far too lightly. There is much in the Bill that is shameful and contrary to the best traditions of British justice. Again and again, the Bill lowers British justice compared with our neighbours'. There is much in it that makes unsafe prosecutions more likely than in countries in the rest of Europe about which we are doubtful when we compare their system with our rule of law. The Home Secretary should reconsider not only the current provision but several others that we have discussed.

The rule of law is more important than any other element of our constitution. After many years, I have concluded that democracy is less important to the poor and the vulnerable than the rule of law. The rule of law cannot be kept long without democracy, so the distinction is not entirely real. None the less, it is true that the rule of law is crucial if the vulnerable are to feel safe in society. The reason why I support the excision of the clause and the various ways suggested to make it less dangerous is that it undermines the safety of vulnerable people because it can be averred of them that, in the past, they have behaved badly.

That is why I want to talk about bad behaviour, about which I am particularly unhappy. I think that such language is so loose that it would never have been accepted in previous debates. I find it incredible that the Government have produced a Bill that is so loosely written in precisely that way. The idea that one might have a propensity to behave in a particular way is a very worrying aspect. First, as the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said, other people might have a propensity as well, as propensities are very widespread. The fact that a person has a propensity to do something may not mean that they are the only person who has such a propensity; there may be many others.

Secondly, the phraseology that explains that issue is plain peculiar:

"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."

My mother disapproved of many things. She was a reasonable person and much of what she disapproved of was a matter of taste. I share many of her tastes in such matters, but the idea that somebody should start off their case in a certain way because my mother disapproved of something that he did seems very peculiar. However, that is exactly what the provision means. I have to tell the Minister that "disapproval" is a very pathetic word. It is the kind of narrow mindedness that one would not expect a Labour Minister to support and a kind of attitude that I think he should not be associated with.

I believe that "disapproval" is not only a pathetic word, but a misleading one. It can be used to cover a multitude not of crimes, but of sins. That important distinction is not made when we talk about disapproval. An atmosphere can be built up in a court around a particular person suggesting that he is the sort of person—I go back to my American example—whom we do not really like very much and not the class or type of person whom we really want to take too seriously, and that we should create circumstances in which it is hard for him to argue that he should be given the benefit of the doubt. Yet the English law is about the benefit of the doubt being given to the person who is charged.

That brings me back to the nature of what is being proposed. I find it very hard to accept that there are any circumstances beyond those that are already allowed in the court in which we should allow such evidence to be received. I see no example in which there is sufficient public interest to overcome the manifest public damage that will be done.

I shall end my speech by returning to the police. It would be wrong for the House to fail to understand that there is much more widespread unhappiness with the police than has hitherto existed. That is the case for a range of reasons, not least including difficulties with traffic offences and the like. Such an attitude exists in rural areas such as mine because the police are so thinly spread and people find it disconcerting that they cannot call upon the forces of law and order when they need them. I have a constituent who was hit over the head in his house by somebody from outside—the clause will not make him any happier about it—and waited for an hour and a half for somebody to come after making a 999 call. He rang again and they promised to come, but an hour and a half later, the police rang him and said that they did not have anybody to send. He did not find a policeman until 12 o'clock the next afternoon.

Such people are unhappy about the police for reasons that are not the fault of the police, but which certainly exist. We must therefore be very careful that we do not open up other areas in which the police can find themselves vulnerable. If such a possibility is damaging to the jury and defendant, it is also damaging to the police. It would be easy to say that the only reason I was picked on was that it was easier to pick on me than on someone else. At the moment, it is difficult to make that argument because we have very careful protections, but the moment it becomes easy to say that we can prejudice—that is what it is—the court against this person in a way that we could not against that person, the temptation to do so will be too great and, even if it were never succumbed to, it would be thought to be too great by those outside. That is why I believe that the proposal is terribly damaging to the police. Even if they behave with saint-like care, people will not believe them.

We spend a lot of time trying to ensure that people are not put into a position in which they might be misunderstood. Our own rules of conduct in the House are based on the principle that we should make public anything that, in the eyes of a reasonable person, might be thought to prejudice us. In the eyes of reasonable people, the proposal will be thought to prejudice the police about certain people in certain circumstances.

Very often, the sort of people with whom the police deal are not very nice. Very often, it would not do any harm to lock those people up because they have probably done a number of things that they should not have done, but the police have not caught them for doing it, so it is not a terribly far step to say, "Well, in this case, we may not be quite right, but we didn't get him for so and so, and we're pretty sure that he could've been involved in the other, so why don't we?" That becomes even more damaging in a police force consistently afflicted by the Government's addiction to targets. We are now a society in which what matters is not what is right, good or effective, but what fits the Government's targets, and I am worried that this is another mechanism by which those targets can be met far too easily and with great damage to juries, magistrates, defendants and the police.

Although I have tried to speak moderately, this is not a moderate issue. In this clause, as in so much of the Bill, the Government are behaving in a dishonourable way—they are undermining some of the very basic principles of English law. Enthusiastic European though I am, I must say that our system ought to be learned from by others, not undermined by ourselves.

Vera Baird (Labour, Redcar)

I profoundly disagree with the right hon. Member for Suffolk, Coastal (Mr. Gummer), who has just spoken in what I regard as highly immoderate terms about a Bill that, in fact, many of my constituents, to whom I have gone to a great deal of trouble to explain its provisions, regard as likely to give them a better shout in the courts, to restore their confidence in the way that the criminal justice system works and to redress an imbalance that, sadly, has been allowed to creep into the criminal justice system. In general, this is a good Bill.

I suspect that that the right hon. Gentleman is perhaps suffering from a combination of his desire to be amusing and the fact that he is still gripped by the emotional impact of having unsuccessfully advocated for a person on death row—an emotional impact that I well understand, having done exactly the same job. I fear that he has led himself astray. The attack on the Bill was far too wide, as was the attack on clause 85. In truth, there is a relatively narrow problem with that clause, not a very wide one at all.

I accept the analysis of the current state of the law, proposed by my hon. Friend the Member for Stafford (Mr. Kidney). I agree with his analysis of the need for change, and I also accept the research evidence that he set out about the fact that juries are prejudiced by the admission of previous convictions.I shall not say any of that again.

In a sense, none of us has to persuade others that the introduction of previous convictions is capable of being prejudicial. The Government accept that it is. Paragraph 4. 55 of "Justice For All"—the paragraph before the one to which my hon. Friend the Member for Stafford referred—states:—

"Previous convictions, or some of them, may be irrelevant to issues in the case. Research undertaken for the Law Commission shows"—

I shall say this in capital letters, as it were—

"that knowledge of previous convictions may prejudice a jury or magistrates unfairly against the defendant."

The Government accept it. They put it in their White Paper, which sets out the basis upon which they intend to legislate. Have the Government gone back on that? I think not. They have carried the intention through, or 90 per cent. of it, but they do in the end slip up. I shall say in more detail what I mean.

Clause 85 allows in bad character of a defendant on eight bases. Subsection (1)(a) provides that it is admissible if all parties agree that it should go in—that cannot be a problem. Paragraph (b) refers to the evidence being brought in by the defendant—that cannot be a problem. Paragraph (h) refers to the evidence coming in because the defendant has made an attack on another person's character and it is just about equality of arms—again, that cannot reasonably be a problem.

Paragraph (f) provides that the evidence is admissible if

"it has substantial probative value"

in an issue

"between the defendant and a co-defendant".

That is governed by another clause, which provides that the evidence goes in only if there is a fight between the defendant and another person, which is fair enough and should not be further governed. Of course, every defendant has to have the right to put in everything that helps his defence.

That leaves us with paragraphs (c), (d), (e) and (g). I hope that it is clear that I am speaking in favour of amendment No. 133, which stands in the names of myself, my hon. Friend the Member for Sunderland, South (Mr.Mullin) and others, which is directed to expunging paragraph (d) from the clause.

I shall deal with the paragraphs that I do not seek to expunge, to ask in the end what paragraph (d) adds, except the real danger of the prejudice that the Government have envisaged in the White Paper. Paragraph (g) allows evidence of previous convictions to go in to "correct a false impression". It is entirely right that false impressions should not be allowed to prevail in a trial, the purpose of which is to search for justice. However, allowing in previous convictions so to correct has an extra condition upon it, and a very fair one. Clause 90 provides that if a false impression has somehow been conveyed and the defendant manages, however he chooses, to dissociate or distance himself from it, previous convictions will not be put in to correct the false impression. That is not problematic in any way.

Paragraph (c) provides that it is admissible to put in previous convictions if they are "important explanatory evidence". Again, that is governed by a further clause which sets out what that "important explanatory evidence" must additionally be. According to clause 86, it must be "important explanatory evidence" without which

"the court . . . would find it impossible or difficult properly to understand other evidence in the case".

If it is impossible for a jury to understand other evidence in the case unless previous convictions go in, they must go in. The entire point of the trial is to get the jury to understand all the evidence in the case. Equally, if it is difficult for the jury to understand other evidence in the case without previous convictions, there is an argument again for allowing them to go in. We are not in the business of putting difficulties in the way of jurors coming to a proper conclusion; we are there to help them.

Whether it is difficult without previous convictions going in properly to understand the evidence is a matter of opinion. It would be far better if the clause were governed by the general discretion in subsection (3) to allow the judge to decide whether it would be adverse to the fairness of the trial to allow previous convictions to go in, merely to solve a difficulty. Because of the perceived difficulties, previous convictions may have to go in automatically, whereas if the judge had discretion to look at the matter in the round, he might persuade the parties to consider another way of solving the difficulty. Consequently, subsection (3), which deals with the judge's discretion, ought to cover the issue of including previous convictions to solve a difficulty. There should be another hurdle to be crossed before those convictions go tumbling in, causing the prejudice that the Government accept they are capable of causing.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Lady has prefaced each of her remarks with a qualification about previous convictions. Does she believe that all her arguments hold true for the so-called propensity to behave in a way that is disapproved of?

Vera Baird (Labour, Redcar)

I am conscious that I am using the term "previous convictions"— that is the argot used in court. However, I accept the definition of bad character as set out in clause 82—my arguments apply to that concept just as well as they do to previous convictions, and I would not want to mislead anyone into thinking otherwise.

Clause 85(1)(e) states that previous convictions and bad character will be admissible if they are

"relevant to an important matter in issue between the defendant and the prosecution".

That is a question of judgment, and the judge will have the ability to exercise judgment under subsection (3). As fairness and balance will characterise that judgment, and if the previous convictions are relevant to an important matter in issue between the prosecution and the defence, it is hard to see what mischief can follow. Clause 88 defines what is meant by the

"matter in issue between the defendant and the prosecution"

which, it says, may include

"the question whether the defendant has a propensity to commit offences"

of a certain kind. It therefore countenances the inclusion of previous convictions to show propensity, but then makes a reservation, stating that the exception is

"where his having such a propensity makes it no more likely that he is guilty of the offence."

The provision certainly countenances the possibility that propensity is sometimes relevant but, at other times, the existence of a propensity, provable by previous convictions, is not relevant to whether the defendant committed the offence or not.

That is relevant to the question of what on earth clause 85(1)(d) is about. I have gone through all the other circumstances in which previous convictions and bad character can generally be admitted, but paragraph (d) states that bad character can be admitted if

"it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged".

That appears to be about propensity, but paragraph (e) deals specifically with the showing of propensity, with the caveat that that can be done only where relevant. Evidence of bad character will not just tumble in if it is not relevant.

What is paragraph (d) for? In Committee, the Minister gave an example of his own experience of jury service. He had sat on the jury in a trial for burglary and handling the proceeds of the burglary. The issue was whether the defendant had come honestly into the possession of the proceeds of the burglary or not. At the end of the trial, the jury found out that that man had previous convictions for three burglaries, and the Minister said that all the members of the jury would have liked to know that in their deliberations during the trial.

In other words, the defendant had a propensity to be dishonest, and the Minister would regard that as important evidence that would help him to be persuaded one way or another. He said that that is why we need paragraph (d). But we do not need (d) for that, because (e) states that an important matter in issue between the defendant and the prosecution can be the issue of propensity, but only where propensity shows that it is more likely that the defendant has committed the offence.

That may be a tortuous argument, but I hope it is now clear that in so far as propensity is relied on as a justification for paragraph (d), it is totally and utterly unnecessary. What it allows, frighteningly, is for previous convictions to be admissible which will show propensity when they do not make it more likely that the defendant has committed the offence with which he is currently charged. If they did that, they would go in under paragraph (e). Consequently, paragraph (d) has no justification whatever, and it would prejudice the jury. That is where the matter starts and finishes, once one analyses with some care and in some detail the basis on which in other paragraphs previous convictions are admissible.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have followed the hon. and learned Lady's argument, and she knows that I am with her on the problems of paragraph (d). Can she explain how she can justify the argument that if there is a propensity to carry out a certain offence, that makes it more likely that the individual has committed the offence with which he is charged on the present occasion? That was the question put by the right hon. Member for Suffolk, Coastal (Mr. Gummer). Propensity does not lead one to that conclusion. Why does the hon. and learned Lady believe that it does?

Vera Baird (Labour, Redcar)

I did not say that. On the contrary, that is the issue, under paragraph (e), for the judge to decide. He has to say that previous convictions can be mentioned to show propensity if that propensity makes it more likely that the defendant has committed the offence in question. There is clearly a grey area. Occasionally, if a series of similar offences has occurred recently, propensity might be probative. The judge must decide under paragraph (e) whether the evidence of propensity—about which, as a general proposition, I confess I am a little unhappy—makes it more likely that the defendant has committed the current offence.

That question can fairly be asked, but under paragraph (d) no such question is asked. Previous convictions tumble in simply because they exist, although they do not make it more likely that the defendant has committed the offence with which he is charged. If they did, they would go in under paragraph (e). Reference to previous convictions will prejudice juries to no effect, and that is a prejudice that the Government accepted in the section of the White Paper from which I quoted. It is a prejudice against which they set their face in that same White Paper.

What will the consequences be? They have been mentioned by others. Our stated policies are to catch more criminals, to convict more criminals, to punish more criminals and to rehabilitate more criminals. How will people be rehabilitated when they know that if any offence is committed in their locality that resembles the one of which they were convicted in the past, they will be picked up. They are bound to be picked up for it by a police service that knows that that will help it to get a conviction. They are bound also, more frequently than prior to the Bill, to be prosecuted by a Crown Prosecution Service that knows that in deciding whether a prosecution is likely to succeed, it can weigh in the balance the fact that previous convictions will be put before the jury.

The criminal, who was intended to be rehabilitated, will also know that he is far more likely to be convicted because of his previous conviction. The Government say that they want to rehabilitate such people. The Government say they want them to go straight, to turn over a new leaf. But those people will be trapped in their past. They will be unable to get away from their past. For what? For no reason at all. Every conceivable justification for admitting bad character into a trial has been set out in all the other paragraphs of clause 85(1). Paragraph (d) is extremely dangerous, and I urge all hon. Members to vote it out of the clause.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Bill is part of a panoply of measures meant to address the perception that the legal process is skewed in favour of defendants and therefore against the prosecution. This measure is part of what I believe to be a series of measures to redress the balance in favour of the victim, but I regret that the likely upshot of this part of the Bill will be to create victims, who may well be queueing up in the criminal Court of Appeal in due course. I listened carefully to the speeches by the right hon. Member for Suffolk, Coastal (Mr. Gummer) and the hon. and learned Member for Redcar (Vera Baird), and I fully agree with what they said. I will confine my remarks to certain points that they did not cover.

If the current proposals pass through the House unamended, allowing evidence of previous bad character and/or convictions will be hugely detrimental to the trial process in our criminal courts. Let us remember that there are circumstances—albeit limited ones—in which we already have the right to introduce evidence of bad character and previous convictions, and that is absolutely right. Any practitioner will agree, however, that those circumstances are usually exceptional because, by definition, they are relevant only in exceptional cases. But the Bill proposes a wholesale, blanket introduction of previous bad character. Would that not mean that every defendant, once convicted, was beyond redemption?

I refer to what the hon. and learned Member for Redcar said about rehabilitation. This measure would effectively mean a life sentence for some people. Perhaps that is dramatic language, but it would not be pleasant for a person to be picked up just because someone in the locality had offended in a way similar to that in which he had. For years to come, such people might await the knock on the door. That would be hugely damaging to the whole image of the judicial process, from the police investigation upwards.

Worse still, the proposals pander to the "round up the usual suspects" culture that is, I am afraid, prevalent in some parts of the justice system. Some of us feel that this one measure will throw the criminal justice system into disrepute. The next stage will be to dismantle the system of trial by jury. The job will then be complete. If these provisions are enacted unamended, I believe that it would be simpler to dismantle the jury system in due course, and that such a move might meet with less opposition then.

Let us remind ourselves briefly of the circumstances in which character can be admissible. First, if a defendant asserts that he or she is of good character when he or she is not, it is perfectly right to introduce that evidence in a criminal trial. Secondly, if a defendant attacks the character of a witness, it would be perfectly right for that to be admitted. The hon. Member for Stafford (Mr. Kidney)—echoed by the right hon. Member for Suffolk, Coastal—mentioned evidence involving striking similarities that would make it almost unbelievable that another person had committed an offence in exactly the same way as the person before the court. Introducing such evidence in those circumstances is perfectly acceptable. I have been involved in trials in which such evidence has been presented, and, of course, the judge will decide in those circumstances whether it is right or proper to do so, and whether to do so would create any prejudice to the trial or to the defendant.

Clause 85 should be removed altogether. The law already provides for the rare circumstances in which character and/or previous convictions need be introduced, and, like the hon. and learned Member for Redcar, I see no reason to include the clause other than to introduce prejudice.

On 3 March, The Guardian cited the views of Lord Falconer and observed:

"In one recent case, a jury trying a doctor accused of raping a patient was not allowed to know that he had previously been convicted of indecently assaulting six patients and acquitted of raping another. The defendant was addressed as 'doctor' even though he had been struck off, and the jurors were unaware that he was being brought to court each day from prison. That typifies the sort of case, argues Falconer, where juries should not be kept in the dark."

Lord Falconer was quoted as saying:

"I'd have thought the classic case is an apparently respectable professional man, say a doctor, who assaults patients in the course of his work."

He said that if that behaviour had led to convictions, they should be admissible.

It seems to me that precisely such cases are already covered by similar fact evidence. If such a person repeatedly assaults or rapes his victims in his surgery, it is only right and proper for any half-decent, half-sensible prosecutor to apply to the judge, and I am almost sure that few judges would see any reason to dispute such an application. The best case presented by Lord Falconer in defence of these draconian provisions is the one example covered by current law and practice.

Robert Marshall-Andrews (Labour, Medway)

I agree with much of what the hon. Gentleman has said, and I agree, in general terms, that in the example given by Lord Falconer the evidence would have been admitted. However, I take issue with the hon. Gentleman on the use of the term "similar fact evidence"; indeed, I have objections to its use in a general context.

As the hon. Gentleman will know, the terms "similar fact evidence" and "striking similarity" have recently been disapproved of by the courts. The test now applied is that of relevance to an issue of propensity. In the example given, the evidence would plainly be relevant to an issue of propensity and would therefore be admitted. The issue that I have with the hon. Gentleman—and, I am sorry to say, with the right hon. Member for Suffolk, Coastal (Mr. Gummer)—is this: the test proposed in the Bill is identical to the one currently applied.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Far be it from me to argue with the hon. and learned Gentleman, who is far more experienced in criminal trials than I am. I understand what he says, but that was not apparent to Lord Falconer when he defended the Bill.

Robert Marshall-Andrews (Labour, Medway)

I agree.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am obliged to the hon. and learned Gentleman.

My main problem with the Bill is the routine introduction of evidence of bad character. That is a defect. It will, unfortunately, instil prejudice in the minds of jury and/or magistrates. That has been referred to in what I erroneously described as the Birmingham study, which I think is in fact the Oxford study, and was also referred to at length by the hon. Member for Stafford and the hon. and learned Member for Redcar. We are discussing a change in the law that will enshrine a right to introduce prejudice to a fair trial, which is asking for trouble. We are treading a dangerous path.

Yesterday, when we considered the Crime (International Co-operation) Bill, there was disparaging talk about the standard of justice meted out in other European jurisdictions. If we do not accept the amendment, we will find ourselves at the bottom of the league, and people on mainland Europe will ask when we will start to act toward accused people in a fair and reasonable manner. I honestly and sincerely believe that the provisions are highly objectionable.

Clause 88 includes a measure on propensity, but the Law Commission made no such recommendation on that score. I know that some of its recommendations have been used and some have been declined. The upshot of passing clause 86 and the other provisions without amendment will be to bring the criminal courts into disrepute. The provisions will make thoroughly bad law and I urge hon. Members to support the amendments.

Chris Mullin (Labour, Sunderland South)

It is a pleasure to follow the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). I agree with my hon. and learned Friend the Member for Redcar (Vera Baird) that the Bill is better than the right hon. Member for Suffolk, Coastal (Mr. Gummer) acknowledged during his otherwise compelling speech. I agree that the problem is fairly narrow but it gives a damaging impression and stains the whole Bill, so I hope that the Government will do something about it. I shall speak to amendments Nos. 125 and 126, which I tabled. I support amendment No. 133, which was tabled by my hon. and learned Friend the Member for Redcar.

Amendment No. 125 would provide that a person could not be convicted solely on the basis of bad character. It is an attempt to ensure that other evidence, such as an eye-witness account or fingerprints, links the defendant to the offence with which he was charged. That is not too much to ask in this day and age. When Lord Falconer attended a sitting of the Home Affairs Committee to discuss the Bill, he was at pains to assure us that the judicial discretion provided by clause 85(3) would be sufficient to prevent the use of bad character evidence to prop up a weak case. No doubt that will usually be true, but not necessarily always. I can foresee what might happen in a high-profile case because that would give rise to the greatest temptation. A judge might feel obliged to allow bad character evidence to go to the jury for fear of otherwise allowing the case to collapse. That is because the police would be under the greatest pressure to get results and the Crown Prosecution Service might be willing to throw such evidence to the jury, although it was a bit iffy, to find out what would happen. The amendment would prevent that from happening.

I am grateful to Lord Falconer and my hon. Friend the Under-Secretary for their courtesy and the trouble that they have taken to explain the Government's position. However, I cannot say that I am happy with the outcome. I have tried to be constructive and I provided Ministers with half a dozen proposals for modifying the provisions in addition to those in the Select Committee report. I regret that they have rejected every proposal.

I received a letter yesterday on amendment No. 125 that suggested that the Government envisage circumstances—albeit very limited ones—in which a conviction could be obtained on the sole basis of previous convictions. That is a recipe for mistakes and it is easy to imagine how they might happen. Whenever a serious offence such as a child murder is committed, the police reasonably search out people with previous convictions that make them potential suspects. People with alibis would be quickly eliminated but those without them would have a problem, especially if little or no other evidence were required. Experience implies that juries are especially suggestible in cases that involve sex offenders and that admission of previous sex offences against children would be fatal, whether the defendant was guilty or not.

On 7 March, The Guardian reported a story about a police search for the murderer of a young woman who was killed in Hampton in south-west London recently. It contained a sentence that gives us a glimpse of the possibilities:

"Detectives are also scrutinising 60 people whom they regard as being 'of interest', and a dozen whose backgrounds make them credible suspects."

If we subtract those who have alibis, we might be left with half a dozen credible suspects. There would be evidence of bad character for them all, and if that is all there is to go on, a result could be obtained on any of them. That happens from time to time.

Oliver Letwin (Conservative, West Dorset)

The implication of the hon. Gentleman's comments of a moment ago is coming over me in waves. Did he receive a letter from the Government that stated that they expected that there would be cases in which a person was convicted solely on the basis of previous bad character?

Chris Mullin (Labour, Sunderland South)

I must be careful not to misrepresent the Government. The case that they cited was Straffen in 1952. I cannot find the letter at the moment, but it seemed to me that the evidence in that case bore a signature and that the Government had not given an example that was relevant to my point. Perhaps I have misunderstood and the Under-Secretary can clarify the matter, but it appeared to me that they wanted to leave open the possibility, albeit remote, of convicting someone on the basis of bad character.

Robert Marshall-Andrews (Labour, Medway)

Perhaps I may assist. When evidence of bad character is adduced in criminal cases, it is clearly good law that the judge tells the jury that it must not convict on the evidence of bad character alone. That is currently the law. Although the Bill is flawed, I do not believe that it will have any effect on that part of the common law.

Chris Mullin (Labour, Sunderland South)

I have now found the letter. The Government say that we should leave matters to the judge, who does not want to be hamstrung by the sort of amendment that I tabled. However, the track record of judges is variable—I put that as generously as I can. Most, but not all, can be relied upon. I remember the words of Lord Justice Bridge at the beginning of the summing up in the Birmingham pub bombings case. He said that some of his colleagues took the view that a judge should be an Olympian detached observer and impartially set out the case without revealing a view. He said that he was not one of those and went on to spell out his view of the case for 189 pages, destroying defence witnesses at random, with results that we all know. There are good and bad judges, and I am sure that most are good.

I do not want bad character evidence to be used to prop up a weak case. We can all think of examples: dodgy identification evidence or a cell confession. There are cases in which someone who has been interrogated for several days in custody and has not coughed is put in a cell with a known villain and, blow me down, is pouring out his heart in a few hours to a person who suddenly agrees to give evidence, in return for early parole or other offences being overlooked. My ears always prick up when I hear about a cell confession. I am sorry that they happen more often than they should. Add a bit of bad character evidence to dodgy ID evidence and a cell confession and, Bob's your uncle, there is a conviction. That worries me.

Amendment No. 126 is designed to extend the judicial discretion in clause 85(3). As drafted, the clause provides eight grounds for the admission of bad character evidence, and a defendant can challenge them in only three circumstances, which the amendment would extend. The Government's proposals are a bridge too far and I hope that, even at this late hour, they will think again.

The Liberal Democrat amendment No. 29 goes further than I would like, but I shall support it to send the Government a message that they need to examine their proposals again. If my hon. and learned Friend the Member for Redcar decides to press her amendment, which also bears my name, I shall support that, too.

Oliver Letwin (Conservative, West Dorset)

The debate has had the unusual characteristic of changing my mind in an important respect. I had not previously accepted the force of the argument advanced by the hon. and learned Member for Redcar (Vera Baird) about clause 85(1)(d). She made a compelling argument and I shall invite my hon. Friends to join her in the Lobby if she presses her amendment. Our amendments Nos. 23 and 24 do not deal with the serious problem of paragraph (d) and I profoundly hope that when the Bill reaches the other place, the hon. and learned Lady's arguments will be read by and resonate with the noble Lords. I certainly hope to see paragraph (d) expunged from the Bill.

I do not agree with the hon. and learned Lady's observations about the general tenor of the remarks made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), because I thought he was on to something. I disagree with the hon. and learned Lady partly because she has not taken into account the full force of the effect of the Government's other proposals. I shall explain why in more detail: to some degree, it has emerged from previous discussions.

In all these matters, the key issue is not the words on the page, but their effects in court. It is arguable—hon. Members have argued—that, broadly speaking, the law already achieves what the Government seek to achieve. If that were utterly the case, the proper step would be for us to accept and support the Liberal Democrat amendment. If the law already admits propensity, already restricts it appropriately and already admits appropriate factors—similar fact and so forth—there would no point in introducing the clause in the first place.

The current Home Secretary is the most legislative Home Secretary in British political history. He would take great pride in that; I am not accusing him of anything that he would be cross about. It is not a track record that I would seek to emulate if I ever succeeded to his post. However, even this Home Secretary with his great legislative propensity has no previous convictions for producing legislation that will have no effect. I doubt that he has marshalled the awesome resources of the Home Office to establish a set of intricately interlinked clauses—clauses 82, 85 and 88—with the sole purpose of having no effect whatever on British legal practice. He surely intends the provisions to have an effect. Presumably, the many highly paid and highly expert lawyers at his disposal will have advised him that the clauses will have an effect. It is unlikely that the only effect that he intends or expects will come about through paragraph (d)—though, as I say, I am persuaded that that provision will have an untoward effect. The Home Secretary intends a wider effect, so it is important to recognise that and wrestle with its implications. That is precisely what our amendments are designed to achieve.

Robert Marshall-Andrews (Labour, Medway)

I know that the right hon. Gentleman considers, as I do, that this Government have a bad character when it comes to introducing legislation that assaults civil liberties. That happened twice in the previous Parliament, and corrections had to be made in the House of Lords. The previous Conservative Administration had a similarly bad character, for the same reasons. One way that that bad character is acquired is through the thoroughly meretricious practice of rephrasing existing law in ways that attempt to make it appear that it is being strengthened against criminals, when no such thing is happening in fact. I should be very interested to hear how the right hon. Gentleman considers that the present law differs from the proposals in clause 85. The earlier clauses, as described by the right hon. Member for Suffolk, Coastal (Mr. Gummer), are different.

Oliver Letwin (Conservative, West Dorset)

I shall answer that request, but first I should admit that there are instances—the Anti-social Behaviour Bill that will come to the House in the near future may be one such—where legislation is a form of public relations. That is regrettable, but it has occurred. However, I do not think that this Criminal Justice Bill is in that category. It is the centrepiece of the Home Office's suite of legislation in this Parliament, and I doubt that the Government want to achieve a purely public-relations effect with it.

I think that the Government are trying to do something with this Bill, and roughly what that is has become clear in this debate: they are trying to send to the judiciary a signal that its members should somewhat alter their presumption. No more, just that—but it is an enormously important action. None of us in this House can guess or know how far the judiciary will pay attention to that signal. Judges have proved splendidly able to disregard such signals from time to time, but they may pay attention to this one, and that is what concerns us. I do not want to dwell on the problem, which has been eloquently described by others. The Opposition's concern is exactly as has been described—that, if rounding up usual suspects were to become a regular phenomenon, it would alter the character and reputation of British justice as very little else could.

The most important feature of our constitutional arrangements, and of people's sense of justice in this country, is that we operate from the presumption of innocence. I do not think that there is a more important principle in Britain. If, over a period of 10 or 20 years, the British public come to believe that being a usual suspect will often lead to being convicted, and that it is not as important to the courts as it used to be that there must be proof beyond reasonable doubt, that will undermine our system of justice in a way that nothing else could.

We have a very precious inheritance, and we must go the last mile to protect against the effect that I have set out. That is why it is important that we redress the balance by introducing into the clause a provision that will prevent the signal that I have described from being conveyed to the judiciary. That is precisely the intent of our amendments Nos. 23 and 24. Their effect would be clear and simple: they would require the judge to look at the potential probative value of the evidence, and minutely to consider whether that is outweighed by the prejudicial effect of the bad character evidence.

In amendment No. 24, we go in some detail into the steps that the judge needs to take to make that determination. We do so to ensure that no judge could possibly be tempted, after reading this legislation—we hope that it will become an Act—to conclude that he was being asked to take the risk of allowing evidence whose probative value was outweighed by its prejudicial effect.

The most important part of amendment No. 24 is contained in proposed new subsection (4A)(b). We ask judges to consider whether the risk of

"convicting the defendant on the basis of his previous conduct rather than because they are satisfied of his guilt in relation to the matters now alleged"

outweighs the probative value. That theme has run through all the speeches in this debate so far, and it unifies Members on both sides of the House. I think that those in the other place will regard it as critical. If judges were asked to do that, they would know how to do it, and it would turn the clause into one that would have no effect, which is exactly what we want it to do. We want to be sure that the clause would only codify a position that is already sensible and to avoid prejudicing trials by giving judges a signal that they can admit evidence even when they are somewhat unhappy about it.

The hon. and learned Member for Redcar (Vera Baird) used the phrase "somewhat unhappy about it" towards the end of her remarks. It emphasised the force of my argument with her about the parts of the clause outside paragraph (d). Everyone who has spoken in the debate has been somewhat unhappy about the prospect of previous character evidence being given too great a weight. That is an instinct and a feeling to which we ought to attend, as it springs from the deepest understandings of the nature of our system of justice. Parliament ought not to be allowing legislation to be enacted in a form that leaves people who want to convict the guilty but want to preserve the ability of the innocent to go free feeling somewhat unhappy.

Sylvia Hermon (UUP, North Down)

It is unclear from the amendments whether the right hon. Gentleman and his colleagues agree with the definition of bad character evidence in clause 82, which concerns me greatly. The clause states:

"Evidence of a person's bad character is . . . he has committed an offence, or . . . 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."

The right hon. Gentleman will know that there are reasonable Ministers in the Government who believe that rap music is associated with a serious and worrying form of conduct. Will the hon. Gentleman comment on that definition? Does he think that it goes too far? In my view, it certainly does. Before I vote for his amendments, he must clarify what he understands by bad character.

Oliver Letwin (Conservative, West Dorset)

The hon. Lady makes a serious and salient point, but it should be tackled in the light of the free advice given to us by the hon. and learned Member for Medway (Mr. Marshall-Andrews), acting in his capacity as the local lawyer. He told us, rightly from what I have been able to understand, that the statement in clause 82(1)(b)—I agree with my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) that it is bizarre—is not a bad codification of the way courts understand bad character at present. They allow propensity, as the hon. and learned Member for Redcar made clear and, amazingly—I had not understood this fact before dealing with the Bill—they admit, or have shown some inclination or propensity to admit, character evidence that is not evidence of a previous conviction but goes beyond that. It might even include an acquittal. I agree with the hon. Lady that, taken at face value, clause 82(1)(b) is jolly worrying. As the hon. and learned Member for Medway informed us, the present state of the law is somewhat worrying. However, to return to the point that I am trying to make about our amendments, as I understand it—I hope that I am right—the courts have an extraordinary inclination to look very closely at any such evidence before they allow it to be brought forward. They worry a lot about whether any such evidence should be brought forward. In particular, they worry about evidence that is not a previous conviction. The general attitude of the courts is therefore not to allow such evidence unless there are extremely strong arguments for doing so in the interests of justice.

The problem with the signal that is sent by the clause as it stands—the signal that I believe the Government intend to send to the courts—is that it is intended to diminish the degree of angst that the courts rightly exhibit. If clause 82(1)(b) is a reasonable synopsis of the current definitions on which the courts operate in practice, what we have set out in amendments Nos. 23 and 24 becomes all the more important. If there has been a previous acquittal, and if the prosecution argues that it should be admitted in evidence, the judge should be able to ask whether there is a risk that, if such an acquittal is brought before the jury, the defendant will be convicted on the basis of previous or alleged conduct instead of on the facts of the case. If, through amendment No. 24, we could restore the position so that the courts do worry about such questions, we could reasonably leave it to judges to protect the presumption of innocence. My impression is that the English judiciary still has a strong attachment to the presumption of innocence.

Robert Marshall-Andrews (Labour, Medway)

I would like to correct one misapprehension. I do not say that clause 82(1)(b) represents succinctly the law as it stands. Indeed, I cannot think of a court of appeal that would have expressed itself in terms, or in prose, as awful as the wording of clause 82(1)(b). However, perversely, therein lies the safeguard. This clause will undoubtedly be interpreted and construed by the Court of Appeal, and it will be interpreted and construed in precisely the same terms as the present law. That is not satisfactory, but it is not a burning-at-the-stake issue.

Oliver Letwin (Conservative, West Dorset)

I—

John Gummer (Conservative, Suffolk Coastal)

Will my right hon. Friend give way?

Oliver Letwin (Conservative, West Dorset)

Of course.

John Gummer (Conservative, Suffolk Coastal)

Like my right hon. Friend, I am not a lawyer. One of my big problems with this issue is that, although the hon. and learned Member for Medway (Mr. Marshall-Andrews) is always extremely seductive in presenting his views, I am not at all sure that hon. Members should agree to phrases that, simply because they are manifestly barmy and inadmissible, judges will interpret in a wholly satisfactory way. Does my right hon. Friend agree that it would be much better to get rid of clause 82(1)(b), so that those words do not deface what may otherwise be considered a reasonable part of the Bill?

Oliver Letwin (Conservative, West Dorset)

I am in danger of being persuaded twice in one afternoon. I agree with my right hon. Friend that, on the face of it, clause 82(1)(b) is jolly odd—that is my translation of his "manifestly barmy". If clause 82(1)(b) does not properly provide a synopsis of the way in which the courts currently deal with these matters, it will be necessary to change it—in the other place, because it is too late here and now—so that it does. It is clear to me from the remarks of the hon. and learned Member for Medway and others that the courts have a conception of something that goes beyond mere conviction, and that needs to be captured in clause 82(1)(b) if we are to have a decent piece of law. I take it that that is what the Government tried to achieve in the clause, but I am persuaded by my right hon. Friend that, if it does not do so, it must be amended so that it does and so that it makes sense.

I want to say one last thing in this connection. To respond to the hon. Member for North Down (Lady Hermon), even if we reach the point where clause 82(1)(b) is a reasonable synopsis, it will operate properly, in the spirit of the kind of justice that we want, only if it is allied to a set of provisions that ensure that before the court admits such evidence it will look extraordinarily closely at the matter and ask itself very carefully whether there is a prejudicial effect. That would require amendments Nos. 23 and 24, or similar amendments.

Edward Garnier (Conservative, Harborough)

Notwithstanding clause 85(1)(e) and (f), which cover relevance to an important matter and substantive probative value, the House should be worried about clause 82(1)(b) because it relates to matters that may have nothing whatever to do with a criminal act. Although it is bad enough in many circumstances to admit previous convictions, to admit evidence in relation to behaviour that is not criminal, but may be immoral or disapproved of by reasonable people, is something that I invite my right hon. Friend to resist strongly. Whether he resists it through his amendment or through amendments tabled by other hon. Members, I urge him not to allow himself to be seduced by any arguments that the Government advance, no matter how reasonably they are put.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. Before the right hon. Gentleman answers, I must say to the House that I am even less of a lawyer than any other right hon. or hon. Member who has participated, but I am bound to observe that we are dealing with clause 85 and must not spend too much time on clause 82.

Oliver Letwin (Conservative, West Dorset)

I am mindful of your point, Mr. Deputy Speaker, and I shall leave it at this: I have become utterly persuaded that clause 82(1)(b) requires pretty drastic attention in the other place.

I hope that the House will send to the other place—because that is where the argument will be carried on and where the votes will be won or lost in a meaningful fashion—a clear signal that is very different from that which the Government wish to send to the judiciary: namely, that one way or another we have to arrive back at a position in which the courts are very reluctant to admit evidence of this kind and do so only in circumstances where they are absolutely convinced, upon prolonged consideration, that the presumption of innocence will not be so prejudiced as to change the character of British justice. If we can arrive at such a position, the means by which we do it are far less important than the effect that we will have.

David Heath (Liberal Democrat, Somerton and Frome)

This has been an extraordinarily interesting debate in which we have heard valuable contributions from lawyers and non-lawyers.

There is a cliché in the film and television worlds of the police movie or the police serial in which one policeman is stolid in appearance, has a stolid car and a stolid house, and takes a stolid approach to policing matters that goes by the book. That person is not the hero. The hero is the rebel who refuses to wear the correct uniform, insists on living in completely inappropriate accommodation and continually bends the rules to breaking point and beyond in order to secure the conviction. We are supposed to assume that that policeman is the one who is doing his job in a better and more admirable way. That is not the case, however. That police officer is a danger both to himself and those around him and to the course of justice. Sometimes, when the Government address matters of crime, policing and justice, they take that somewhat reckless attitude. They take the view that the end of securing more convictions of guilty parties—an aim that we all share—allows them to take reckless risks with the means of arriving at that point, which are the judicial and, especially, the court processes. That is what we are debating.

In some ways, the proposals are a codification of current practice. Members on both sides of the House have been at pains to say that we accept such codification as right, proper and a sensible way forward. However, is the use of that vehicle to extend the introduction and admissibility of bad character evidence, as the Government propose, a sensible reaction to rebalance the scales of justice; or will it take things to the point at which it is likely that manifest injustice will be done? The latter is more likely.

I entirely accept your strictures about clause 82, Mr. Deputy Speaker, but we must be aware of what it says, because it provides for the bad character evidence that would be used under clause 85. I am wholly unpersuaded that subsection (1)(b) of clause 82 represents an acceptable definition of what might be admissible evidence of bad character. As that provision is unacceptable, it is even more difficult to accept clause 85 because it would provide for such bad character evidence to be admissible in a wide range of circumstances.

Earlier in the debate, the hon. Member for Witney (Mr. Cameron) asked why we wanted to delete the whole of clause 85 even though we accepted codification. The answer is that the clause would be extremely poor codification. Indeed, professionals in the field have said that it is more likely to result in more lawyers making more arguments about admissibility than in fewer lawyers making fewer such arguments. Although we believe that it is possible to reach consensus on appropriate codification, this clause is not it. We can pray in aid the comments not only of Labour Members but of Plaid Cymru and Conservative Members. They share our view that the provision is unacceptable.

There are several layers of unacceptability. First, we must start with the presumption of innocence and proceed on the basis that, in British law, the case before the court is the one that is being tried—not previous circumstances that may not be relevant to that case.

Secondly, it is wholly unacceptable to define a criminal class, whereby people who are identified as likely to have committed a crime, in the eyes not of the police but of the court, are more likely to be convicted of that crime irrespective of any other evidence that is submitted. I am reminded of the unlamented Lord Chief Justice Jeffreys and his infamous, and probably apocryphal, dictum during the bloody assizes in Taunton, when he tried some of my ancestors and others after the Monmouth rebellion: "Do not waste the time of the court by pleading your innocence." We say much about British justice, but at one time it was not quite as finely balanced as it is at present. When a person is before the court, we want no presumption or prejudice that merely their past record or character, rather than the other evidence adduced, suggests that they are more likely to have committed the crime.

Separate from the provision's effect on the defendant and the conduct of cases is its effect on the conduct of investigations—a point made by the hon. Member for Stafford (Mr. Kidney). Several hon. Members have alluded to the practice seen in "Casablanca" when the policeman René, whose rank escapes me, gives the order to round up the usual suspects. That process is not acceptable in British policing, but clearly the temptation to use it will be greater if the usual suspects are more likely to be convicted in a British court. The provision encourages sloppy policing and sloppy case preparation, as the hon. Gentleman said, and it makes it more likely that investigators will concentrate more on investigating previous convictions and history than the circumstances of the current case, which is bad practice in itself. All those problems combined make the provision corrosive of investigative and judicial procedure in a way that we in Parliament should not accept.

I believe that the Government could propose a formulation to which all of us agree. The lead amendment would delete clause 85 in its entirety simply because the Liberal Democrats think that the Government should go back to the drawing board and start again. The hon. and learned Member for Redcar (Vera Baird) takes a narrower view: she has no problems with much of the clause but wants to get rid of subsection (1)(d), which she finds especially offensive. We agree that that is the most offensive part of the clause, so we can support her amendment. The right hon. Member for West Dorset (Mr. Letwin) has been persuaded by some of the arguments about subsection (1)(d) but not of the desirability of deleting the whole clause; he would introduce a new test—a balance between the probative value of the evidence and the prejudicial effect. We agree with that as well: although it is perhaps the least satisfactory way to redress the imbalance in the clause as it stands, it is a move in the right direction and we are grateful to the right hon. Gentleman for suggesting it.

David Kidney (Labour, Stafford)

The hon. Gentleman feels sure that the House could agree on a proposal to replace the Government's. Might that be found in the Law Commission's draft Bill?

David Heath (Liberal Democrat, Somerton and Frome)

I think that that proposal comes close, and it should certainly be the starting point because it is founded on research done, advice taken and the application of judicial minds to the problem and it builds on current practice. I am told that similar fact is now called propensity—I am not a lawyer, so I did not know that—but it appears to cover broadly the same area. I share the view expressed by the right hon. Member for Suffolk, Coastal (Mr. Gummer) that if we rely on the Court of Appeal to interpret what we in Parliament draft sloppily, we are not doing our job properly. I hope that we can get the provision right in the other place; it clearly is not right now.

Whatever the solution, let us all accept that there is a problem with the Government's drafting. They have attempted to be popular in some ways and to send out signals. I deeply mistrust the concept of sending out signals; that is not what legislation is about. Legislation is about making law that is unambiguous and will work, not about sending out signals that might be misinterpreted at the point of receipt. If a measure so crucial to the judicial process and the reputation of our courts is wrong now, let us go back to the drawing board and reach a consensus on an alternative proposal. I agree with the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who said that those who yesterday, debating the Crime (International Co-operation) Bill, decried other countries' judicial systems will have to look again at ours if we accept into our law the Bill in its present form, complete with the demerits, deficiencies and imbalances that it will introduce into our system.

David Cameron (Conservative, Witney)

This has been a fantastic debate to listen to, perhaps especially for the non-lawyers among us. I wanted to add my voice in opposition to what the Government are trying to do in clause 85 in terms of previous convictions.

As the hon. Member for Somerton and Frome (Mr. Heath) said, we have been offered a menu of ways of changing what the Government are suggesting. The Liberals propose that we leave out clause 85 all together; my right hon. Friend the Member for West Dorset (Mr. Letwin) suggests that we consider prejudicial and probative value in each case and try to codify the law; and the hon. and learned Member for Redcar (Vera Baird) proposes what is possibly the neatest solution—taking out clause 85(1)(d), as paragraph (d) is the biggest problem.

After all the arguments that the Government have heard, I am sure that they are aware that they must go away and rethink the provisions. They have a range of options, including those proposed by the hon. Member for Stafford (Mr. Kidney) and by the Law Society. I think that anything would be better than clause 85(1)(d), which is the real problem.

There is a charitable view of what the Government are trying to do and an uncharitable view. When I served in Committee, I felt that the charitable view was that they are trying to find a balance between two principles: first, the jury should be able to see the facts—

Oliver Letwin (Conservative, West Dorset)

Just for the record, will my hon. Friend confirm that he cannot have heard the Committee discuss the provision in question, as opposed to the many others, because the proceedings were so organised that it never reached clause 85?

David Cameron (Conservative, Witney)

My right hon. Friend is absolutely right. There are many things that we did not reach. Indeed, we did not reach some things in Committee that we have not reached today and will not reach.

The charitable view of the Government is that they are often wrestling in the Bill with two principles. The first principle is to let the jury see the facts, let the dog see the rabbit and let all the facts be laid out in front of the jury and trust it. The second principle is that we must do what we can to keep a fair trial. The uncharitable view of what the Government are doing is that they wanted to have a public relations exercise—this is the point made by my right hon. Friend the Member for West Dorset—and a tough Bill. They wanted the police to say "Yes, this is a great, tough Bill" and the Prime Minister to be able to speak at the Dispatch Box about a tough law-and-order Bill. There were moments in Committee when one felt that the police had given the Government a list of things that they would like to be written into law, and I suspect that they were pretty amazed that the Government said yes to all of them. The provision that we are talking about in relation to previous convictions probably falls into the second category, or the rather uncharitable interpretation of the Bill.

The hon. Member for Stafford and the hon. and learned Member for Redcar made powerful speeches in which they tried to give a charitable interpretation of what the Government are doing. However, I say to them that they have to ask why the Government are going ahead with clause 85(1)(d) if its purpose is to prejudice a trial and poison the well. I say to the hon. Member for Stafford that he needs to ask the Government why they are going ahead with a provision that goes beyond what the Law Society recommended if not to send some sort of message about toughness that I think is inappropriate and will not be right.

On the whole, I am in favour of giving the jury more information. I want instinctively to trust the jury. I am not a barrister, but I have served on a jury in a trial and I had great faith in the common sense of the jury system in getting it right. I have some form on the issue, having worked in the Home Office when my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), who is not a known liberal, was Home Secretary and reformed the right to silence. To me, that was a wholly appropriate and welcome change. It gave juries the chance to consider more information and find out whether someone had said something when they were first arrested and then decided to stay silent afterwards. Information that juries could not previously consider could be brought out in court and commented on as a result of the changes that we made as a Government.

I think that the provision before us is entirely different. As several hon. Members have mentioned—I shall not repeat their remarks—much of what is contained in paragraphs (a) to (h) of clause 85(1) tries to codify current practice and what currently happens in the law. The real problem is paragraph (d), which is the big kahuna, as it were. Let me repeat it:

"it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged".

A point needs to be made—I do not think that it has been made so far—about the fact that, in asking what counts as the same category, one has to look at clause 87, which states:

"two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State."

So the Home Secretary's fingerprints are clearly on what would be considered as the same category. As the hon. and learned Member for Redcar said, that is the biggest change.

When we vote tonight, we must ask ourselves whether we want juries to think, "He did it before, so he has done it again." That is what clause 85(1)(d) tries to do. I have consulted lawyers about clause 85, and they all point to—[Interruption.] I do not believe that that is my pager.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. Whoever has that machine please silence it.

David Cameron (Conservative, Witney)

Thank you, Mr. Deputy Speaker. I look forward to seeing how the Hansard writers will report that—perhaps with dots and dashes.

Everyone to whom I have spoken says that clause 85(1)(d) is an attempt to prejudice the trial, to poison the well. There can be no other reason for setting it out as it has been drafted.

David Kidney (Labour, Stafford)

The hon. Gentleman has twice said "Law Society", when he means Law Commission. Does he consider the Law Commission's draft Bill to be much more acceptable than the Government's present proposal?

David Cameron (Conservative, Witney)

I certainly believe that it is, but having listened to the argument, in many ways the neatest solution would be to take out paragraph (d), as proposed by the hon. and learned Member for Redcar. However, it is for the Government to go away, listen to the debate in the other place and come up with a codification of the current law that does not go nearly as far as clause 85(1)(d), because, from everything that I have heard, that provision will prejudice the trial.

I wish to make two final points. First, many hon. Members have talked about how police investigations will be skewed if clause 85 becomes law, and they are right. Police officers are human beings. What will happen in a police investigation, when they are under enormous pressure to get a result and they have one, two, three or four suspects who have previous? Will they go after them? Of course they will; they are human beings and they will want to get a result, by rounding up the usual suspects—a cliché, I know, but I really believe that that will happen.

The second and final point is about miscarriages of justice. If we pass clause 85 into law unamended, we may get more convictions in the short term, as juries will hear about previous convictions. If the aim is to convict more criminals, I suppose that that will be seen as a success, but I truly believe that, in the longer term, we will live to regret clause 85. I believe that because we have been here before with police evidence. In trials 20 years ago, police evidence was believed far more in the courts than it is today.

Whether we like it or we like it not—as my right hon. Friend the Member for Suffolk, Coastal said—public appreciation and trust in the police has declined. Certainly in courtrooms, police evidence is not always wholly trusted by the jury, and barristers perhaps quite rightly point to previous occasions where police evidence has been tainted or whatever. As a result, it has been more difficult to get a conviction.

Oliver Letwin (Conservative, West Dorset)

My hon. Friend adds to the benefits that I draw from the debate. Does he agree that, as one reflects on it, the bureaucratic disasters attending the introduction of the Police and Criminal Evidence Act 1984, which we are only gradually beginning to see, were necessitated by precisely the problem to which he alludes? Does he also agree that there is altogether too great a chance that, if such a measure were agreed unamended, we would find ourselves with the need to produce a further ghastly bureaucratic measure to constrain the police's tendency to act in the way that he describes, which is exactly the wrong way to go about things?

David Cameron (Conservative, Witney)

My right hon. Friend has foreseen the conclusion of my speech, but I shall say it anyway. We will see more convictions, but then we will see evidence of miscarriages of justice and evidence that the police rounded up the usual suspects, possibly because of the pressure that they were under, and that juries were prejudiced by hearing about previous convictions. We will then be back not necessarily to where we started, but possibly to a situation even worse than where we are now. In future, the law may have to be changed, as my right hon. Friend says; or we will have trials in which jurors will tend to have a very jaundiced view of the authorities prosecuting someone with previous convictions.

I have never seen the hon. and learned Member for Medway (Mr. Marshall- Andrews) perform in court. I am a great admirer of his speeches, and perhaps it is something that I should do. However, I can imagine that he would say: "Ladies and gentleman of the jury, my client is here for one reason and for one reason alone and that is because my client has previous convictions. That is why the police have rounded him up and brought him to this court." We can all imagine that. He would then be able to say, "Of course we have had a history of this happening in the past. People with previous convictions have been sent down for crimes that they did not commit." There would be celebrated cases and we would find that what was happening in our courts was not a return to common sense, which is what the Government want, but a flight from it. That is why I feel so strongly that the Government must think again, particularly about paragraph (d).

Edward Garnier (Conservative, Harborough)

I rise with some diffidence. I must confess that I have missed about 50 per cent. of the debate. I am sorry about that. However, I am familiar with the issues. I am acutely aware that the guillotine comes down at 7.20 pm and that the constitution rolls on. The Minister must have an opportunity to reply to the many speeches that have been made and the arguments that have been advanced.

I shall contribute briefly to the debate so that those who come to study it hereafter do not get the impression that it was contributed to by only a few Members who had nothing better to do than sit in the Chamber on a warm, sunny afternoon.

I am sure that the purpose of the proposed legislation is well meaning, and no doubt the Government thought about it quite carefully. However, I am concerned, as are others, that the clause is defined as part of the target-hitting or message-sending agenda. Legislation should not be for the purpose of sending messages; it should be for the purpose of making law. If we are not careful, this piece of legislation will just become another early-day motion, or something similar to it, which we can all sign up to because it looks good and will go down well with the readers of certain newspapers. We can then all go home feeling that we have done something to achieve something better—re-election possibly—for our fellow citizens who feel plagued by persistent criminals.

That is not good enough. The arguments that have been deployed this afternoon to unpick the clause that we would like to see amended are ones that need to be answered. They need time to be answered, and perhaps the Minister will not have enough time to deal with these matters today. I hope that his noble Friends in another place will listen to what has been said in the Chamber and will undo what the Government intend to do by means of the clause.

I sit as a Crown court recorder. I have not nearly as much experience as a criminal lawyer as the hon. and learned Members for Redcar (Vera Baird) and for Medway (Mr. Marshall-Andrews). However, my experience of sitting as a recorder and also, and more importantly, going to Judicial Studies Board courses is that real judges—full-time judges and full-time magistrates—are appalled at the low level of criminal justice legislation that we push through the House. We churn it out as though the House were nothing more than a sausage machine.

When I was last at a JSB course, which was about three weeks ago, a senior member of the judiciary came up to me privately and asked, "Are you serious about the contents of the current Criminal Justice Bill and its provisions in relation to previous convictions and bad character?" I said, "I am not, but the Government are, and the Government will have their day." By and large, most of the legislation contained in this great fat telephone book of a Bill will go undiscussed. The judge, like many of his brother judges, threw up his hands and said, "I suppose it makes good work for the JSB."

I urge the Government to pay close attention to the genuine concerns of the judiciary, who have to apply legislation in court when dealing with real criminal cases. I can assure the Minister that they do not enjoy being criticised later for applying badly drafted and ill thought-out laws that Parliament imposes on them. I urge the Government to think carefully before they whip Government Members, either here or in the other place, to support clause 85 as currently drafted.

I do not want to exaggerate, but the wording of the clause is silly and dangerous, and needs a lot of careful thought. If that not does happen, it will end up, as my hon. Friend the Member for Witney (Mr. Cameron) said correctly a moment ago, leading to miscarriages of justice; vast amounts of time and money spent in the Court of Appeal; and Parliament having to come back and look at the matter all over again. Nobody will be the winner—not the justice system, not Parliament's reputation, not the citizens whom we seek to protect by passing good legislation, nor, indeed, the defendants who, although they do not like to go to prison or be convicted, believe that when they are convicted they are convicted fairly under proper rules that they can understand and which everyone accepts as fair. I will not prolong the Minister's wait any longer except to say that there is a lot that needs to be said about this. A lot has been said about it, but the Government must think a great deal more carefully before they advance bull-headedly down the road of passing the clause without further thought.

Hilary Benn (Labour, Leeds Central)

May I begin by saying that this has been an extremely important debate? The importance that right hon. and hon. Members attach to the issue has been reflected in the speeches by Members on both sides of the House, to whom I have listened intently. I must confess, however, that someone who is not a lawyer might have been left slightly puzzled at the end of our discussion. We heard from some quarters the argument that the proposed changes in clause 85 are so radical and far-reaching that, as regards the operation of the criminal justice system, they will effectively bring the house down. We also heard the opposite argument, which was put most strongly by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews). He argued, as I understood it, that the clause will not make a lot of difference. The truth is, the Government are trying to find a balance in making the proposed change to the law. I am the first to recognise the anxiety that has been expressed about the changes, and I will seek to offer Members some reassurance.

Robert Marshall-Andrews (Labour, Medway)

Could I correct a misapprehension? I agree with the general thrust of the Minister's remarks. In truth, I do not think that the clause will make a great deal of difference, except for subsection (1)(d), which makes a very considerable difference indeed.

Hilary Benn (Labour, Leeds Central)

I am grateful for that clarification from my hon. and learned Friend.

During the debate, the Government were accused of a number of things in introducing the clause and the Bill. I want to put it on record that it is not our intention that the clause should be used, to pick up a concern expressed by my hon. Friend the Member for Sunderland, South (Mr. Mullin), to round up the usual suspects. I acknowledge his expertise on the subject, which is probably greater than that of all other hon. Members, gained as a result of work that he has done for many years on miscarriages of justice. However, that is not the intention of the clause—it is not about trying to prejudice juries; it is not about trying to damage the rehabilitation of offenders; it is not about undermining the principle of innocent until proven guilty; and, to repeat a point that I made in the last debate, it is not about the prosecution no longer having to prove their case beyond reasonable doubt. The clause is intended to get the balance right.

There was wide agreement during the debate that the current law potentially provides for a large amount of bad character evidence to be admissible. That was accepted across the House. No one argued that that should not be the case. The question is whether the current arrangements for determining when bad character is admissible are satisfactory. All the evidence suggests that they are not. Those who have examined the issue—the Law Commission, Lord Justice Auld and others—have, if I may sum up in three words, described the present situation as haphazard, inconsistent and unpredictable. In other words, the current arrangements are a mess. That must be the starting point on which we are all agreed.

If we are agreed that the current system is a mess, it needs to be sorted out. The question that we are debating is, in essence, how evidence should be put before juries so that they can judge it in reaching their verdict. Three main issues came up during the debate. The first was whether we should have an inclusionary or an exclusionary approach. The second, which was touched on by the amendment of my hon. Friend the Member for Stafford (Mr. Kidney), was whether leave should be applied for. The third was to which categories of bad character evidence should the safeguards in clause 85(3) apply.

I shall try to address each of those issues in turn, but to illustrate the argument I shall refer briefly to two real cases. In Committee I cited the example of a High Court judge who was dealing with a horrific murder case involving a woman who was stabbed 81 times. The defendant in that case had previous convictions for using a knife and for beating people. Reflecting on the experience of presiding over that case, the judge wrote:

"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."

I would say to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) that the point about that judge's experience is that, in that case, that evidence was not included.

The second case was mentioned by one of my hon. Friends. Last month there were reports of a case concerning the alleged rape of a woman by a doctor. In the trial the complainant had not been allowed to give the proper circumstances of her story because that would have involved revealing to the court the doctor's convictions for sexual assault in respect of nine other patients. To add insult to injury, the complainant was cross-examined about a child whom she had adopted 36 years previously, the taking of a valium tablet, and an alleged sterilisation operation. In the light of her treatment, she said afterwards:

"I feel the law's got to be changed because had I been able to tell the whole truth I feel sure the jury would have seen a totally different picture. Something is wrong with the way the system is working. Having first-hand knowledge of the system I now understand why."

Robert Marshall-Andrews (Labour, Medway)

rose—

Hilary Benn (Labour, Leeds Central)

If my hon. and learned Friend will bear with me, I shall complete the point.

In the second case, the previous convictions were clearly not admitted. The right hon. Member for Suffolk, Coastal (Mr. Gummer) spoke with passion in support of his view that the Bill undermined justice. I ask him to reflect whether the two examples that I have given do not also undermine justice and the public's confidence in the system. The public are not lawyers, and I am not a lawyer, either. They look at the way in which the present rules can be interpreted, and say from a lay person's perspective, but with no less force than the arguments that we have heard from Members much more qualified than I in matters legal, that the current system does not make sense.

John Gummer (Conservative, Suffolk Coastal)

Surely that proves my point. The evidence in both those cases ought to have been admitted under what reasonable people understand the law to be. If the Government were merely putting into better terms, more neatly and conveniently, what they understood the law to be, that would be one thing, and I would support it. My argument is that, in the course of doing that, they did not follow the suggestion of the Law Commission but added to it some twirls and baubles of their own, which are themselves dangerous and do not admit of being within the kind of attitude with which we all agree.

Hilary Benn (Labour, Leeds Central)

I hear the argument that the right hon. Gentleman advances. The conclusion that I draw, however, from the two examples that I have just given is that they make the case for shifting the way in which the system works in favour of an inclusionary approach subject to appropriate safeguards. [Interruption.] The right hon. Gentleman might disagree, but that is the Government's view. On the evidence of those two examples—there are others—and despite the fact that a potentially wide range of bad character evidence can currently be admitted, it is not the case that those provisions are being applied consistently.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

rose—

Robert Marshall-Andrews (Labour, Medway)

rose—

Hilary Benn (Labour, Leeds Central)

I shall give way to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), and then to my hon. and learned Friend the Member for Medway.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the Minister not accept that the two cases that he mentioned could lead perfectly reasonably to a different conclusion? That conclusion would be that, if we have not got it quite right in law as to when similar facts should be admitted, we need to address that problem. Equally, if evidence is excluded when it is directly relevant to a case, it should be able to be included. That does not, however, lead automatically to the conclusion that the presumption should be that not only past criminal convictions but past history should be admitted unless certain qualifications apply.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman may advance that argument, but it is not one that the Government accept. We are trying to find a system that will provide reasonable certainty and simplicity in the way in which it operates, because the current arrangements are very confusing and are applied inconsistently. Different people reach different judgments in different circumstances. That is the case for our setting out in clause 85 the rules as to the circumstances in which bad character evidence can be admitted, together with the safeguards. I would say to my hon. Friend the Member for Stafford that that is one reason why we are not in favour of having leave arrangements. My hon. and learned Friend the Member for Redcar (Vera Baird) set out extremely clearly why, in each of the categories—I know that we take a different view in regard to paragraph (d)—there are cogent arguments for the law being set out in the way that it is, in the clause as drafted.

Robert Marshall-Andrews (Labour, Medway)

I am grateful to the Minister for giving way. I will not weary him with this point, but if the doctor case is going to be used as a seminal example in the argument for a serious change in the law, will he tell us why that doctor's form was not admitted before the jury? On the facts that he has given us, any lawyer would say that that was manifestly a case in which the doctor's form should have gone in. That might have been a case not of an aberrant law but of an aberrant judge.

Hilary Benn (Labour, Leeds Central)

The honest answer is that I do not know why that evidence was not included, but my hon. and learned Friend's point does not make the case. [Interruption.] No, what it illustrates is the case for a change in the approach to these matters, and clause 85 provides for an inclusionary approach, subject to safeguards. I would argue strongly that such an approach will deal with the current problem of inconsistent application of the law while addressing the concerns that have been raised about the circumstances in which certain evidence can be brought to bear in a case. In those circumstances, clause 85(3) provides for the protection to which I shall turn in a moment.

Oliver Letwin (Conservative, West Dorset)

Does the Minister not accept that the case to which he referred is a case of similar fact?

Hilary Benn (Labour, Leeds Central)

Indeed I do—and the question is, if the system currently allows such evidence to be admitted, why should the same not be allowed in that case and in others of which Members will be aware? The problem that the right hon. Gentleman must address is the way in which the system currently does not work. He need not take my word for that; he need only look at what the Law Commission and Lord Justice Auld had to say about it.

Clause 85(1)(d) provides a straightforward route for the admission of evidence of the convictions we are discussing, so that the law can be transparent and its effects readily anticipated and so that it can be consistently applied, avoiding protracted arguments about relevance whenever possible but subject to the safeguards in subsection (3). The clause does not make evidence of such convictions any more admissible than it would otherwise be: the exclusionary test ensures the exclusion of evidence that is insufficiently relevant. That is a key point. Paragraphs (d) and (e) provide for two slightly different routes, both of which are subject to the same safeguards.

Vera Baird (Labour, Redcar)

I hope that I can make my hon. Friend understand that giving a judge the right to exclude evidence of previous convictions in exceptional circumstances will not deal with the situation. Although judges are not always ready to receive signals from the House, they are obliged to accept the law as we lay it down. We are about to enact a measure stating that evidence is admissible even if it is utterly irrelevant. How can any discretion allow such evidence to be excluded when we have told judges, in each and every case, "In it goes"?

Hilary Benn (Labour, Leeds Central)

The answer is simple. When considering an application under clause 85(3), a judge must ultimately decide whether the probative value of evidence covered by paragraphs (d), (e) and (h) outweighs the prejudicial effect. When representations are made on application by a defendant under subsection (3), surely that is the right test and the one that provides the safeguards.

The hon. Member for Witney (Mr. Cameron) got it right when he said that this was about trying to achieve a balance that would give juries the picture and then enable them to make a decision in the end. The Government believe that the intention behind the new inclusionary rule is that evidence of this kind should be capable of being heard, subject to the safeguards in the Bill. It is on that basis that I commend clause 85 to the House.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We have heard 11 speeches during this guillotined debate, and apart from the Minister's, not one voice has been raised in support of the Government's proposition. It has been opposed in 10 speeches and two interventions. Representatives of six parties have said they are unhappy about it.

There is a difference of view about how we should proceed, and we respect each other's differences, but the overriding view is clearly this: the Government's proposal, which they say will preserve in English law the requirement for the prosecution to prove beyond reasonable doubt that a defendant is guilty and for the defendant to be presumed innocent at the outset, will not in fact protect that position adequately.

This is partly technical and complicated, and three options have been discussed. I hope that the House will support at least one of the proposals for change. The Chairman of the Select Committee said that, although this would not be his preferred option, he was willing to support our proposal for the removal of clause 85 and the rebuilding of that part of the Bill. The right hon. Member for West Dorset (Mr. Letwin) said that we should introduce a better protection. The hon. and learned Member for Redcar (Vera Baird) suggested that we concentrate on deleting one measure, under which evidence of previous convictions would automatically be admitted. I urge the House to support at least one of those options, but above all I urge the Government to listen to the clear voice saying that this is a dangerous proposal, which goes far further than previous recommendations, should not be accepted by Parliament and should no longer be proposed by the Government.

Clause 87 — Offences "Of The Same Description" or "Of The Same Category"

Clause 91 — "Attack on Another Person's Character"

Clause 97 — Interpretation of Chapter 1

Schedule 5 — Evidence of Bad Character: Armed Forces