HC Deb 21 October 1982 vol 29 cc601-15

Question again proposed, That this House doth agree with the Lords in the said amendment.

Mr. Kilroy-Silk

If the Minister and those who support him feel that that right, which has been long established and never substantially brought into question, should be eliminated, the least they can do is to accept, as did the Royal Commission on criminal procedure and my hon. and learned Friends, that it should go in tandem with the introduction of the tape recording of the interrogation of suspects. If it is necessary to abolish this long-standing right, I cannot see why we cannot, at the same time, introduce the crucial safeguard of ensuring that suspects' confessions and interrogations have been recorded.

The Minister has already accepted the principle and he has agreed that we need a legislative opportunity to abolish the unsworn statement. However, he could hold it in reserve and implement it only when and if he is in a position to provide the resources to enable the introduction of tape recording. That would make the amendment more acceptable. There is no reason to rush into this tonight. There is no major campaign or demand in the country to end a great injustice, anomaly or abuse. It is a provision that has been thrown in by the other place almost by the back door. It is unnecessary to introduce it in this manner and with such haste. If such a measure is to be introduced, it should be introduced properly and in conjunction with other provisions.

This is not an isolated attack on the rights of defendants in court. It is another example in the long line of cases in which this Government and previous Governments have whittled away the rights of defendants, whether by abolishing the majority verdict, by vetting jurors or by the new campaign, initiated by the police, to discredit the jury system altogether. It is another example of a clearly thought out and sustained campaign by certain people and institutions who would like to see the scales stacked heavily against the offender and on the side of the police.

For that reason, if for no other, we should be careful before rushing headlong tonight into agreeing to a retrograde amendment.

Mr. Ivor Stanbrook (Orpington)

I hope that the House will not agree to the amendment, because I believe that the operation of the new rule will be oppressive to the simple and innocent people who may appear before the criminal courts. I am fully aware of the immense array of legal talent, expertise and authority among those who support the amendment. Such expertise could be intimidating and it may seem impertinent of me—a junior member of the Bar—to challenge the wisdom, if not the legal authority, of that view. I am sorry that I am on the other side of the argument from so many of my hon. Friends. It may also be that my view is derived more from instinct than from my legal training or legal knowledge, despite the fact that I have been a criminal advocate for 22 years.

It is curious that the amendment was moved in the other place by a Liberal Peer. The Liberals are a party who consider themselves to be the special guardians of the liberty of the individual. The amendment was supported by a former Lord Chancellor and a former Attorney-General in the Labour Government. It was also supported by an eminent Law Lord and it was accepted, finally, by the Government. We can thus be certain that this is not a party matter.

We should examine the case on its merits. When I consider the formidable authority of the legal hierarchy which is on the side of the amendment, in some ways I feel reassured. What do they know of the thoughts and feelings of the ordinary citizen—I mean the innocent ordinary citizen—who comes before a criminal court for the first time? Let us bear in mind the fact that millions of our fellow subjects come before magistrates' courts, which receive comparatively little publicity. Only thousands come before Crown courts for jury trials.

My hon. and learned Friend the Member for Burton (Mr. Lawrence) and other advocates of the amendment seem to think that we are dealing only with jury trials. We are not. We are dealing with the ordinary defendants most of whom come before magistrates' courts. I am very concerned about the fact that so many of the advocates of the amendment should be arguing that this right, which has existed for almost 100 years, is of benefit to the guilty man. They do not seem to realise that by depriving the defendant of this right we are in fact taking a benefit away from the innocent.

After all, most such people, especially those who are before the courts for the first time, are intimidated by the atmosphere of the court. The court is strange to them. They are naturally suspicious of lawyers and of magistrates—of all the legal apparatus. Here is something to which they were entitled. They may be confused, perplexed and not understanding. How many of those who have spoken in favour of the amendment have had experience in magistrates' courts of seeing such ordinary, humble people appearing before a magistrate and having a clerk rise and read out to them the appropriate wording as to their rights to give evidence on oath or from the dock? How many of those people realise—I am reassured by the fact that so many of the supporters of the amendment are distinguished, eminent, legal figures who rarelyappear before magistrates' courts—that more than half the time the defendants concerned, especially if they are innocent, are confused and simply do not know what to do when presented with this choice.

Mr. Percy Grieve (Solihull)

They are advised by people such as my hon. Friend.

Mr. Stanbrook

My hon. and learned Friend says that they may be advised by counsel, but they may not have counsel. They may not be represented and if, as I suspect is the case, most of them are somewhat wary and suspicious of the legal profession, they may not have wanted counsel originally when they were before the court.

If someone is asked whether he wishes to give evidence on oath from the witness box, in which case he will be cross-examined on what he has said, or to remain in the dock and say something from there, in which case he will not be cross-examined, to the ordinary innocent mind the latter alternative is often the most attractive.

Sir Charles Fletcher-Cooke

My hon. Friend has painted a pathetic picture, which brings tears to the eyes, of some lonely, innocent, inarticulate person in a magistrates' court. I hope that he realises that the amendment does not apply in any way to such a person. If such a person is all alone in the court, without counsel or solicitor, he may still make an unsworn statement from the dock. The provision applies only to those who are represented by counsel or solicitor.

Mr. Stanbrook

I may be wrong, but my impression is that we are taking away the right of the defendant to make any sort of statement as to the facts. As I understand it, the wording certainly allows him, when he is not represented by counsel, to say anything that his counsel could have said, but counsel cannot give evidence as to the facts. Who am I to assert that my hon. and learned Friend is wrong? However, my impression of the clause is that it would not be possible to make a statement as to the facts in a magistrates' court. If that is the case—I believe that the point has been made already in the other place—we are depriving many people of a right which they enjoy at the moment and of which unsophisticated people often take advantage. They feel intimidated and simply do not want to go through the palaver of going into the witness box, taking the oath—

Mr. Grieve

They do not want to be cross-examined.

Mr. Stanbrook

—and then being cross-examined by someone—it might be a policeman, a solicitor or a barrister—who is perhaps a little fearsome, as has been said. I do not believe that in depriving such people of a privilege that ordinary people in Britain have had for nearly a century we are advancing the cause of justice in our criminal courts.

It has been argued in favour of the amendment that it is necessary because of the abuse of the privilege by unscrupulous criminals, but we are not talking about abuse by unscrupulous criminals; we are talking of the rights of individual citizens. We are taking a right away. We cannot possibly justify a diminution of the right of the individual citizen in the criminal courts on the basis that some criminals abuse that right.

I accept and support most of the Opposition arguments against the amendment except that which suggests that the right should be maintained because police witnesses are sometimes dishonest. I do not think it is right to adduce that sort of argument. The case can stand well without any such imputation against police witnesses.

Before we make any changes to the rights of individual citizens in our criminal courts, we must ask ourselves whether by so doing we shall diminish any existing rights of innocent citizens under our law to be tried justly and fairly. I cannot possibly accept the argument that just because some people abuse the right—and the abuse comes most often when accused persons are represented by counsel before a jury—we must take away the privilege. In other words, I fear that the effect upon ordinary defendants coming before our criminal courts will be an impression that judges and lawyers are ganging up against them, and that the net effect will be a further weakening of that faith that the ordinary citizen should have in our legal system.

10. 15 pm

Mr. Alexander W. Lyon

I agree with the hon. and learned Member for Burton (Mr. Lawrence) that we ought to consider seriously the fact that about 50 per cent. of court trials result in acquittals. I do not agree with him that that means that many guilty men go free. We know that in at least one-third of that 50 per cent. the case is stopped before it gets to the jury. Therefore, in those cases the jury was not misled by dishonest criminals. Something is wrong with the criminal investigation system when it leads to such disparity. We should move rapidly towards a public prosecutor system such as the one in Scotland, which would be a major advance in criminal law reform and would get rid of such cases. That is also pertinent to the consideration of this issue.

Despite the amount of froth that it has engendered in the press and elsewhere, the fact is that this is a fairly small issue. No statistics have been presented, but I do not believe that there are many cases before the criminal courts where unsworn statements are used. They are used more frequently at the Old Bailey than they used to be. Some criminals think that there is a wheeze about using that system, which is making it more attractive. However, a small proportion of court cases result in its use.

Therefore, I would not feel deeply aggrieved if the amendment were passed. However, I agree with my hon. Friends that it is wrong if we allow the amendment to be interjected by the other place during a discussion there and then brought to the House of Commons, without a full discussion of all the implications.

It had been agreed that one of the main reasons why unsworn statements are advised by counsel in cases when they represent the accused is that they enable a man to question the police evidence without putting in his character. If we are going to take that right away from him, it should follow that we consider the question of putting in character. Whatever the Minister says about how the judges are so scrupulous in not allowing that except in appropriate cases, it is not my experience. It is some years since I practised, but we did not get far in arguing with the judge that he should not allow the character to be put in. If the police had been cross-examined on the basis that their evidence was false, almost inevitably that led to the character being put in. If we are going to take away this device, we should consider the matter of putting in character. That is why that device should be properly considered as a balancing item.

I would prefer it if we looked at the system of the criminal trial. We believe in the adversarial system and not in the Napoleonic code system of searching for the truth rather than defining whether there is a case against the accused. That means that we must have the present rules in criminal trial, which may not get nearer to the truth than at present. There is a case for considering the right to silence in that respect. Within that overall view I would be prepared to look at the unsworn statements and the right of the accused not to go into the box, or at least not to have comments made by the judge if he does not do so. Before that, however, there would have to be a better supervision of the initial inquiries that led to his appearance at the trial. That means overhauling the whole criminal investigation system.

That could be done if we had a public prosecutor. In Scotland, where there is a procurator fiscal, the police are not responsible for prosecution. They do their job under the general direction of the procurator fiscal. They report to him and he keeps a grip on them. He is an independent lawyer who is not in the business of simply seeking to get a prosecution on its feet at all costs. He decides objectively whether there should be a prosecution. Far fewer bad cases are brought before the courts in Scotland. I suspect that the acquittal rate is also much lower.

In Denmark, where the public prosecutor is entitled to question the accused before a case goes to trial, the number of cases that are fought is small—only 5 per cent. —and few of those result in acquittal. It does not involve the enormous resources and expense of the English system of long trials that frequently lead to acquittal.

We should not tackle the problem by a little reform here or there. That might lead to injustice. We need an overall assessment. A more radical approach to the criminal trial needs to be taken. The lawyers would shout. People are deeply attached to everything that has been done since 1295. But we are now in a different world. We should adopt a fresh approach. But I am not prepared to support piecemeal legislation that does not necessarily take account of the overall balance.

Prosecution lawyers and those who sit as judges or temporary judges are in favour of the proposal; defending lawyers are against it. The reason for that is not hard to understand. We should look seriously at the English criminal trial, but not in this way.

Mr. Grieve

I shall not attempt to follow the hon. Member for York (Mr. Lyon) in his disquisition on the possible disadvantages of our present system of criminal procedure.

It is high time that the anachronism of the unsworn speech from the dock was swept away. It is a coelacanth of our criminal procedure. For centuries the accused was not allowed to give evidence in his own defence because it was thought that he would probably commit perjury and put his immortal soul in danger. At last, in 1898, he was given the right to give evidence in his own defence. It was a necessary reform, although it came all too late. The accused was entitled to go into the witness box and give evidence in his own defence and was subject to cross-examination. The legislature of that time did not, perhaps, give its mind to the fact that the residual right to make a statement from the dock was left. In consequence, it remained as a refuge for those who did not wish to subject themselves to cross-examination.

It is an anachronism that weighs criminal procedure in the courts unfairly on the side of the accused. In my career at the Bar I have had experience of that. There have been occasions when I thought it right to advise my client that it would be desirable—because if he gave evidence he would be cross-examined and his case demolished—to make a statement from the dock. It cannot be cross-examined or impugned, but it enables the accused who makes such a statement to make all sorts of aspersions, animadversions and attacks on prosecution witnesses. It means that his own character cannot be put in issue.

For years now the Bench and the Bar have thought that this was an anachronism that ought to be swept away. The other place has done a service to the administration of the criminal law by suggesting that in this Criminal Justice Bill we should take the opportunity of so doing.

I understand the feelings of colleagues who hesitate before making any change that would seem to whittle away the opportunities that a man has for defending himself. But what opportunity for defence which is worthy of the name is whittled away by saying that any defence that a man may make on his own behalf should be subject to cross-examination? This is an anachronism that has endured for nearly 100 years. It has endured far too long. It is time that it was swept away. It is time that those who wish to speak on their own behalf in the criminal courts should be subjected to cross-examination.

For those reasons, which I put extremely shortly, I suggest that the amendments should be supported.

Mr. Anderson

The arguments are finely balanced. I cannot work up any enthusiasm for the view that this is an assault on a matter of deep constitutional principle or a matter that deeply concerns the right of the individual. Such an assault would exist if, for example, the proposal was to abolish the right to silence.

I am more convinced by the arguments of procedure, of selectively choosing from the Philips committee, of not putting this issue in a wider context, and by the suggestion that it has been brought in by a side wind, that it has not been properly considered or based on any researched material that could properly convince the House.

Arguments have been advanced that this is a historical accident, anachronism and anomalous hangover that has not been properly considered.

Mr. Grieve

How on earth can the hon. Gentleman think that research will help a question of this kind?

Mr. Anderson

On this, as on a number of other matters that come before the House, there could be research on the way in which it has been used. For example, the House has benefited from research on juries. Such research can affect what happens in the consideration of important legal matters in this place.

It is not, as the hon. and learned Member for Solihull (Mr. Grieve) appeared to suggest, some anomalous hangover from the 1898 Act. If he reads the debates at that time, he will see that the principle was debated during the passage of that Act. It is certainly true that there are real problems in directing a jury on the weight to be attached to an unsworn statement from the dock, but judges must give other difficult directions to juries—for example, the accomplice warning. I do not think that that has proved too difficult for juries in the past.

10.30 pm

It is correct, as has been suggested, that the unsworn statement can lead to abuse. But there are precautions, such as the fact that counsel, under the Bar code, cannot draft that statement, and that evidence can be given in rebuttal of anything that is said in an unsworn statement that catches the prosecution by surprise. I do not know whether, if there is an attack on the character of either the prosecution witness or a co-accused, that opens the possibility of having the character of the person making the unsworn statement that catches the prosecution by surprise. I do not know whether, if there is an attack on the character of either the prosecution witness or a co-accused, that open the possibility of having the character of the person making the unsworn statement put before the jury. I have sought to delve in legal books to find authority for that. I believe that there was a case on this subject during the summer. I stand corrected if that is not so. It is a matter that the House could correct if it were not possible for the character to be put in issue if such an attack were made under cover of an unsworn statement.

I do not believe that the amendment is the thin end of the wedge against the right of silence. I was intrigued by what the hon. and learned Member for Burton (Mr. Lawrence) said about the 50 per cent. acquittal rate, as if there were something peculiar about that figure. If 50 per cent. is an improper proportion, it would be interesting to know what the hon. and learned Member would think was a proper percentage of acquittals and how he would adjust the rules to produce such a proper acquittal rate.

Mr. Lawrence

We just seem to acquit a very much higher proportion than anybody else.

Mr. Anderson

If 50 per cent. is not the proper rate, what does the hon. and learned Gentleman consider to be the proper rate? On what basis is that proper rate calculated and how would he set about ensuring that that rate is achieved? It would clearly be impossible to do so.

A more weighty objection to the amendment is the point put so eloquently by hon. Friend the Member for Hackney, Central (Mr. Davis). Because of their antecedents, many defendants are vulnerable, their vulnerability is known to the police and it is difficult for them to tell the jury of any offensive conduct from the police during the questioning to which they had been subjected. There could then be real injustice.

Another possibility, which has not yet been discussed, but which could affect a defendant of good character, is the possibility that he may have made a statement under caution in which he implicated several of his co-accused. He may be most reluctant to go into the witness box and be cross-examined because it would put him in difficult position with his co-accused. Yet, he may, as an innocent person, have a proper explanation for the charge that is being brought against him. However, for extraneous reasons—the danger of his being cross-examined about the role of his co-accused—he may be reluctant to go into the witness box. This is a factor that can arise in criminal cases, and which is of some importance.

The proposed abolition of this right must tilt the balance, to some extent, against a defendant. There is no clear evidence of abuse and there is no research material available. The Minister has said, in relation to the provision of tape recordings, that the position is not "stationary"—it may not be stationary, but it is hardly mobile. If there is a link between the introduction of tape recordings and the abolition of the right to make an unsworn statement, why does not the Minister undertake to introduce the two in tandem so that, if the balance is tilted against the defendant in respect of the amendment, he can tilt the balance towards the defendant by a Home Office direction in respect of the other matter?

The Government have been selective by acceding to the amendment. They can redress the balance administratively. If they wish to be seen to be acting in a just manner, they should give that undertaking to the House.

Mr. Ryman

I shall make only three short points, because the arguments have been fully rehearsed. Not for the first time during the Bill's passage I am almost entirely in disagreement with many of the speeches made by my hon. Friends.

I disagree with the contention that some great constitutional principle is at stake. It is not. At stake is whether an existing right of a defendant should be preserved or abolished. I disagree with any suggestion to the effect that a vast amount of academic research on the subject is required. It is not.

It is common knowledge that the practice of making unsworn statements from the dock is widely abused in criminal trials throughout the country. It is common knowledge among those with any experience and knowledge of the subject that frequently this results in juries being deceived. It is nonsense to say that the abolition of the right would in some way prejudice a fair trial. Nobody wants that.

The crux of the matter is as to whether this Bill is the most appropriate machinery for dealing with an undoubted anachronism. The sooner that is abolished the better. I have been more impressed by my hon. Friends' speeches criticising the Government about the manner in which the legislation has been introduced. I have a great respect for the Peers who introduced the amendment in another place. I prefer their views and those of the Criminal Law Revision Committee to those of various hon. Members who have made speeches tonight. I say that with respect to them. Members of the Criminal Law Revision Committee and the Peers who made speeches in another place have more experience and knowledge of the matters under discussion than many hon. Members on both sides of the House who have made speeches. Therefore, I shall support the Government, although I find the manner in which they introduced the proposal distasteful.

The argument in favour of abolition is not outweighed by the manner in which it was introduced. It would have been better to have introduced comprehensive legislation to reform criminal procedures in various ways. My Front Bench advanced a false argument when it was said that it is necessary to couple the provision with the recommendations of the Philips Royal Commission. That covered a far wider subject. We want an abolition of abuses which enable guilty people to be acquitted and to deceive juries. This is a modest but a worthwhile reform which should be supported.

Mr. Cryer

I shall speak briefly. I am encouraged to intervene by the pontificating tonight largely by members of the legal profession. I am always suspicious about leaving the law to lawyers who say that they have proof that juries have been deceived. Mostly, they are the selfsame lawyers who maintained that the jury system had existed for hundreds of years and that there was no possibility of carrying out research to discover if any juries, in any unnamed trial and without identification, had been deceived. Those lawyers who now claim confidently and pompously that juries have been deceived are not prepared to allow any research to see if their assumptions are correct. One or two, hearing talk of research, curl their lips because they know so well about these matters. Why should they not know? They live at the top of the tree. Their earnings make most ordinary people curl up in wonderment.

What about the ordinary people? Have they been given much of a chance to comment on this change? Of course they have not. It has been introduced by a back-door method. There has been no consultation. No papers have been issued to explain that the Government have had fresh amendments introduced by the House of Lords—by lawyers in the other place, of course—which is subject to no give-and-take through the electoral system. Its members are responsible to no one except themselves. Lawyers have decided that some reform is necessary and the Government have gone along with it, as they did over jury research. The Minister said that jury research was desirable. It went to the other place. Then the Minister urged all the Conservative Members who had voted for research to vote against it in a remarkable turn-around within the space of a few days.

It is not good enough. People claim that this is not a constitutional change. Things might appear differently to the pensioner or the housewife who feel themselves innocent of the accusation that they have stolen goods from a supermarket. Their reputation for honesty is suddenly in jeopardy. As has already been indicated, the change affects magistrates' courts as well as jury courts. What happens in magistrates' courts is important. Indeed, the vast bulk of criminal cases is dealt with in those courts.

An accused person whose reputation is at stake might feel that the removal of the right of an option is reasonably important. It is a reduction of choice. A person appearing before a court for the first time is confused and horrified by the accusation. I am referring to people who feel that they are completely innocent. I am not talking about the clever criminal who, in any case, will not be attending the court by himself. He will be employing one of the well-paid lawyers represented in their plenitude in this debate.

The ordinary housewife or pensioner may be nervous or apprehensive even about speaking in court let alone being subjected to cross-examination. They may wish to take the opportunity to make an unsworn statement from the dock to which they have at least become accustomed for a few minutes during the torture to which they have been subjected—I use "torture" in a metaphorical sense—to overcome the fear that their story, which they honestly believe to be true, will be torn to shreds by a clever lawyer appearing for the prosecution. Everyone knows that what I say about mental strain, the apprehension and the tension of an appearance in court is true. There is need seriously to consider the consequences before going ahead with the proposed change.

Mr. Lawrence

So that we may better appreciate whether the arguments of the hon. Member for Keighley (Mr. Cryer) are based on experience, will he tell us how many times he has been in a magistrates' court or the Crown court and listened to a trial?

10. 45 pm

Mr. Cryer

I have observed trials on about 30 or 40 occasions in magistrates' courts. The hon. and learned Gentleman probably does not realise that when I was a teacher I took regularly groups of students from a further education college to the magistrates' court, because I thought that it was important that they should know something about how the courts function. I regard the magistrates' courts as an important form of summary jurisdiction about which people should know something.

I am worried about going ahead rapidly with this change. I do not believe that a case has been made out showing clearly the advantage of such a change. It seems to be an administrative advantage for the Government's convenience, and not for the maintenance of legal principles that have existed for over 100 years. It is a piecemeal attempt to alter matters in a highly unsatisfactory manner. There has been no opportunity for interested organisations to make representations. I support the objections that have been made.

I am sorry that, yet again, this measure is being taken on a Thursday night on what is probably for both sides a modest Whip.

Mr. Alan Clark (Plymouth, Sutton)

A two-line Whip?

Mr. Cryer

Not in my case. Since the hon. Member for Plymouth, Sutton (Mr. Clark) is making his comments from a sedentary position, which is usually the case and probably the result of his public school education, I must point out to him that one of the hon. Members who started the change down the corridor was a Social Democrat Member. However, neither the Social Democrats nor the Liberals could bother to attend to take part in discussions which, on both sides of the House, are regarded as reasonably important. We should have had more time to consider the proposal. The Government should withdraw it and allow time for proper consultations.

The Attorney-General (Sir Michael Havers)

I have been slightly puzzled by the attacks that have been made upon the Government for being so resistant to any attempt to initiate any form of jury research. My recollection of the Bill was that we were doing our best to reach a satisfactory agreement about that. Perhaps the hon. Member for Keighley (Mr. Cryer) has forgotten who was the Member of the other place who fought tooth and nail against any form of research on juries. It was the noble Lord Hutchinson. He was the one man fighting all the other lawyers in the other place who supported the amendment abolishing speeches from the dock.

I do not for a moment claim that lawyers know best, but, equally, lawyers do not claim to be experts upon every subject as I fear some hon. Members apparently do.

I have been baffled by the number of people who disagree with my hon. and learned Friend the Member for Burton (Mr. Lawrence) when he says that the provision allows criminals to escape. How does one know that such accused are guilty? How can one say that an accused is guilty after he has been acquitted? My other hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) was accused of being anecdotal when he spoke of actual experiences when he was present in court. But, no. "Verbals" are to be accepted as true. "Verbals" are a fact of life, but where is the evidence that makes the "verbals" any more likely to be accurate than the suggestion that more criminals have been acquitted than would otherwise have been the case? It is all very one-sided. We have to accept that "verbals" are the order of the day, but statements that can only be based on surmise have to be dismissed.

I wonder whether some hon. Members have any sense of reality when they speak of defendants being so scared or inarticulate that they must be given a useful halfway house between not saying anything and being forced to go into the witness box. What about all the Crown witnesses who have never been in a court? Even a barrister who has had to give evidence will admit that he never realised that it was so unpleasant.

I cannot accept the idea that only the defendant will be inarticulate or will crumple under cross-examination. Let hon. Members think about a girl in a rape case. She has to give evidence before a jury and, in a notorious case, a packed public gallery. She may be subjected to the most frightening and searching cross-examination, perhaps by a QC for a defendant on legal aid. Time and again, I have seen cross-examinations in a rough manner lasting for hours. If the judge allows it, the whole of the girl's past sexual life will be exposed to the world—and all to be published the next day. Yet it is suggested that the defendant must not be exposed to all that; he must have the useful halfway house.

It may be suggested that the girl is a liar or a loose, lustful woman who sought the man's companionship and, eventually, sex with him, but she is not allowed to see him challenged if he chooses to sit in his halfway house. He is allowed to stand in the dock and say "She is a loose woman. She led me on. She got drunk in the pub and put her hand on my trousers when we got into the car." He does not get cross-examined.

A sense of fairness supports those who wish the amendment to be carried, but I have an even stronger reason to support it. It was outlined by my hon. and learned Friend the Member for Darwen and it is not statistical or anecdotal. I have seen it happen too many times.

Two defendants fall out. One goes into the witness box and is cross-examined. He may not involve his codefendant, but the second man sits in the dock and puts all the blame on the first. The judge tells the jurors that they must judge the case on the evidence and must put out of their minds what defendant B said about defendant A, but that is a form of mental gymnastics of which 12 jurors are not capable. They say "The judge says we must put it out of our minds, but you heard what that defendant said. Might it be true?" However careful the judge may be, the seed has been planted.

Nothing can be more grossly unfair to the defendant who goes into the witness box. He has no opportunity to deal with the allegations. He may have the most convincing evidence to rebut them. He may even be able to show that he was not at the place where the other defendant alleges he was. All of those risks are run. I therefore believe that the support given to this proposal in the other place—by, incidentally, Lord Elwyn-Jones, who was an Attorney-General and a Lord Chancellor—is something that cannot lightly be disregarded.

Mr. Anderson

That danger would still exist, even if this right were abolished, because if the defendant chose the right of silence, his counsel could make those same damaging allegations against the co-defendant, without letting in his character?

The Attorney-General

With the greatest respect to the hon. Gentleman, counsel can draw inferences and comment only on the evidence. It is the evidence that would be given by the man hiding in the dark. Of course, he can cross-examine, but it is the evidence. He will say: "I shall now tell you, members of the jury, what happened. It was not me who was to blame; it was that fellow. He is the one standing beside me, because what he did was", and then he gives the spiel, and he can take two hours over it. None of that can be challenged. That is a gross unfairness which, more than anything else, justifies the change that we are being asked to make tonight.

I am delighted that no hon. Member has sought to advance the proposition that was advanced in the other place—and again in the newspapers today—that the ability to make unsworn statements should be retained to enable political statements to be made, or those which, if made outside the court, would render the maker liable to an action for slander. I do not know how those propositions were ever seriously put forward. I am relieved that those who have spoken in this debate have had more sense than to repeat them in this House. They are nonsense, and they should never have been made in the first place.

I do not believe that I can help the House by speaking longer—

Mr. Clinton Davis

The Attorney-General has not dealt with the pertinent point raised by his hon. and learned Friend the Minister of State about the countervailing situation which should be provided to deal with the protection of accused persons, for example, by the introduction of tape recorders at police stations. His hon. and learned Friend said that he saw no objection in principle to that. The proposition that I put to the House was that that should accompany the proposition that the Minister is now seeking to make. What is wrong with that? Could not a directive be issued by the Home Office to implement that procedure which the Minister of State agreed should be followed?

The Attorney-General

The only justification for that, if I may say so, would be on the ground, which has not received general acceptance in the House today, of the "verballing", and that, if there is to be a "verballing", the accused runs the risk, if he goes into the witness box, of having his past record disclosed, because a "verballing" requires him to say that a police officer is a liar. Of course, it does not require that. The cross-examination—some of us have had to tread warily on that course in the past—has been one which allows one to challenge—and make clear the fact that one is challenging—and enables one's client to go into the witness box later and say what he wants, without it crossing the mind of the prosecuting counsel that he should make an application to the judge.

If he was idiot enough to do that, I cannot think of any judge who in his discretion would allow that course to be followed. So it can be only on that limited basis that the hon. Gentleman's attempt to connect this with the tape recording can be justified. I understand that a statement is to be made shortly about tape recording. I do not say that it means that there will be tape recording instantly in every police station in the country. One has only to think about the mechanics and the procedures involved to realise that that could not happen straightaway.

11 pm

Mr. Cryer

Before the right hon. and learned Gentleman laughs away the right to make a statement, while I do not give it great weight it is true that, for example, Ron Smith, the father of the murdered nurse, Helen Smith, made a statement from the dock in which he expressed a point of view. That may be regarded as an abuse, but when he made that statement Ron Smith was part of a campaign to have an inquest into the death of his

daughter which was subsequently confirmed by a court. The opportunity to make a statement should not be entirely disregarded.

The Attorney-General

I am not familiar with the circumstances in which Mr. Smith was in court. For this to be appropriate it must have been as a defendant. I doubt if many people would support the proposition that a court can be used to make a political or other statement wholly unconnected with the purpose for which the man is in court. I certainly would not subscribe to that.

The hon. Member for Hackney, Central (Mr. Davis) asked a question with which I forgot to deal. The proceedings that he asked about become active when the defendant is first before the court which is sitting as examining justices.

Mr. Stanbrook

Before my right hon. and learned Friend sits down, will he deal with the point on which my hon. and learned Friend the Member for Darwen (Sir C. Fletcher-Cooke) and I disagreed? Is it not the case that the rule does catch unsworn statements made in magistrates' courts as to matters of fact?

The Attorney-General

The provision which has been preserved by the subsection is to ensure that where a man has no legal representation the propositions of law, or of inference—whatever it might be—that he wishes to make must be allowed. If it were a statement of fact that counsel could not make, that would not be appropriate.

Question put, That this House doth agree with the Lords in the said amendment: —

The House divided: Ayes 97, Noes, 38.

Division No. 318] [11.1 pm
Ancram, Michael Lang, Ian
Aspinwall, Jack Lawrence, Ivan
Bendall, Vivian Lester, Jim (Beeston)
Biggs-Davison, Sir John Lloyd, Peter (Fareham)
Blackburn, John Loveridge, John
Boscawen, Hon Robert Lyell, Nicholas
Bottomley, Peter (Krovich W) MacGregor, John
Bright, Graham McNair-Wilson, M. (N'bury)
Bruce-Gardyne, John Major, John
Chalker, Mrs. Lynda Marlow, Antony
Chapman, Sydney Mates, Michael
Clark, Hon A. (Plym'th, S'n) Mather, Carol
Clarke, Kenneth (Rushcliffe) Maxwell-Hyslop, Robin
Cope, John Mayhew, Patrick
Cranborne, Viscount Mellor, David
Dorrell, Stephen Meyer, Sir Anthony
Dover, Denshore Moate, Roger
Dunn, Robert (Dartford) Morrison, Hon C. (Devizes)
Dykes, Hugh Murphy, Christopher
Faith, Mrs Sheila Neale, Gerrard
Fenner, Mrs Peggy Needham, Richard
Fletcher-Cooke, Sir Charles Neubert, Michael
Fraser, Peter (South .Angus) Newton, Tony
Goodlad, Alastair Osborn, John
Greenway, Harry Page, Richard (SW Harts)
Grieve, Percy Percival, Sir Ian
Griffiths, E.(B'y St. Edm'ds) Proctor, K. Harvey
Griffiths, Peter (Portsm'th N) Renton, Tim
Grist, Ian Rhodes James, Robert
Gummer, John Selwyn Rhys Williams, Sir Brandon
Hampson, Dr Keith Ridley, Hon Nicholas
Hawksley, Warren Rossi, Hugh
Hicks, Robert Rumbold, Mrs A. C. R.
Hogg, Hon Douglas (Gr'th'm) Ryman, John
Hunt, David (Wirral) Shaw, Giles (Pudsey)
Hunt, John (Ravensbourne) Shaw, Sir Michael (Scarb')
Hurd, Rt Hon Douglas Shelton, William (Streatham)
Jopling, Rt Hon Michael Silvester, Fred
Kershaw, Sir Anthony Sims, Roger
Smith, Tim (Beaconsfield) Warren, Kenneth
Speed, Keith Watson, John
Speller, Tony Wells, Bowen
Stevens, Martin wells, John (Maidstone)
Stradling Thomas, J. Wheeler, John
Taylor, Teddy (S'end E) Winterton, Nicholas
Thomas, Rt Hon Peter Wolfson, Mark
Thompson, Donald
Thorne, Neil (Ilford South) Tellers for the Ayes:
Trippier, David Mr. Archie Hamilton and
Voggers, Peter Mr. Tristan Garel-Jones
Waddington, David
Anderson, Donald McCartney, Hugh
Benn, Rt Hon Tony Marks, Kenneth
Bennett, Andrew (St'kp't N) Parry, Robert
Booth, Rt Hon Albert Pavitt, Laurie
Brown, Ronald W. (H'ckn'y S) Prescott, John
Campbell-Savours, Dale Robinson, G. (Coventry NW)
Cocks, Rt Hon M. (B'stol S) Rooker, J. W.
Cryer, Bob Rowlands, Ted
Davidson, Arthur Sever, John
Deakins, Eric Shore, Rt Hon Peter
Dean, Joseph (Leeds West) Skinner, Dennis
Dormand, Jack Spearing, Nigel
Dubs, Alfred Stanbrook, Ivor
Dunnett, Jack Summerskill, Hon Dr Shirley
Foot, Rt Hon Michael Tinn, James
George, Bruce Welsh, Michael
Harrison, Rt Hon Walter Woolmer, Kenneth
Huckfield, Les
Hughes, Robert (Aberdeen N) Tellers for the Noes:
Kilory-Silk, Robert Mr. George Morton and
Lyon, Alexander (York) Mr. Frank Haynes.

Question accordingly agreed to.

Forward to