§ '.—(1) A confession or admission shall not be given in evidence except where the prosecution prove to the court beyond a reasonable doubt that
- (a) it was made voluntarily and without oppression of the person who made it, and
- (b)(i) that in regard to the person who made the confession or admission the rules regarding arrest, detention and interrogation established in this Act or in the codes of practice referred to in section 59 and 60 of this Act, or elsewhere established by law, have been adhered to, or
- (ii) that in regard to a child or young person it was made in the presence of a solicitor or in the presence of a person entitled to be informed of the child's or young person's detention under section 51 of this Act.
§ (2) In any case it shall be lawful to interview a suspect with his written agreement and in the presence of his solicitor and the record of that interview may be given in evidence notwithstanding that it might otherwise be inadmissible under (1) (b) above.
§ (3) In any case where a confession or an admission has been ruled inadmissible:
- (a) it shall not be admissible for any purpose whatsoever at any stage of the trial except for the defence of the person who made the confession or admission, and
- (b) any evidence obtained as a result of that confession shall be similarly inadmissible.
§ (4) In this section "oppression" shall include torture or cruel, inhuman or degrading treatment or punishment and the use or threat of violence. '.
And the following amendments: No. 181, in clause 69,page 60, line 25, after 'section', insert
'or section (exclusion of confessions or admissions). '.
§ No. 182, in page 60 line 26 leave out subsections (2) to (7).
No. 183, in page 61, line 6, leave out from 'section' to 'any' in line 8 and insert
'shall render inadmissible evidence of'.
§ No. 184, in page 61, line 9, leave out lines 9 to 18.
§ Mr. Maclennan
New clause 10 is designed to give an accused person protection from the use of evidence that is obtained unlawfully—for example, as a result of an unlawful search or consequent upon an excluded confession. It puts on the prosecution the burden of proving that the evidence was obtained lawfully or that any breach of the law in obtaining it was of no material significance — for example, a minor breach in the practice of questioning. There is a residual category that would permit evidence being given, even if obtained unlawfully, if, in the words of new clause 10,the overriding interests of justice require it to be given".It is expected that the power would be used only rarely, and in extremely important cases, with a warning duly being given to the jury.
One of the main criticisms levelled against the Bill is that, while at last it provides a statutory code of police powers, it fails to provide any real sanctions against the breach of that code. In theory, three sanctions are available for such breaches—the prosecution of police officers for criminal offences, civil actions against them and disciplinary proceedings against them. In practice, however, none of them is of much avail, because they all need to be initiated by a complainant who is a victim of a breach or by another police officer. Launching such proceedings would involve great risk in terms of time, money and commitment, and possibly fear of victimisation regardless of the outcome.
A far more effective disincentive against infringement of the code would be risk of failure of the very end to which the infringement is made—the outcome of the prosecution. That is achieved in some other jurisdictions by an exclusionary rule. Evidence that is obtained unlawfully is simply excluded at the trial with the result hat the prosecution is likely to fail.
The Home Office has made it clear, in the notes that it has helpfully provided for hon. Members, that the experience of other countries with such exclusionary rules does notunequivocally show that they are effective in deterring police misconduct.Indeed, in some such countries experience is worse. An absolute exclusionary rule and the application of a 94 doctrine that might be described as the fruit of the poisoned tree often result in the acquittal of plainly guilty men. The entire judical system and the laws it tries to administer are therefore brought into disrepute. However, that is no argument against the discretionary exclusionary rule that new clause 10 proposes and under which a court might, but need not, exclude such evidence.
Paragraph 11(10) of the Home Office guide states:It would be contrary to the interests of justice to exclude relevant evidence solely because it was obtained following a breach of the rules.It is easy to think of hypothetical cases when that would be so—for example, the discovery of illegal firearms or explosives during a technically unlawful search. At the other end of the spectrum, on a warrant that was obtained by fraud, there might be a malicious and destructive search of premises, occupied by someone who has annoyed the police, which finally reveals only a few milligrarnmes of cannabis. Only the courts are competent to decide what the interests of justice are.
New clause 10 therefore confirms the power of the courts, which they might already enjoy in common law but would be reluctant to use if a new statutory code did not explicitly remind them of it, to allow or exclude evidence that has been obtained unlawfully. In either case, if that is what the interests of justice require, only the courts can be the ultimate judge.
New clause 10 is drawn so that the courts need investigate the matter only if the defence raises it following a similar provision in clause 69(2) on confessions. Unlike the case with confessions, new clause 10 will allow the courts to admit the evidence, notwithstanding the lawfulness of its provenance remaining in doubt, or even if there were proof that it was obtained unlawfully, provided that the unlawfulness was relatively unimportant or that it was overridden by the interests of justice.
The strategic objective of new clause 10 is to reinforce the efforts being undertaken in the police service to teach, encourage and support police compliance with the law by adding a clear disincentive for breaches in addition to the sanctions that I have already mentioned. That would do much to enhance public confidence and support, without which the police cannot, in the long run, perform any of their functions. New clause 10 has the support of, and its drafting was assisted by, Justice, the British branch of the International Commission of Jurists. It has considerable support outside the House, and I hope that it will enjoy a great deal of support inside.
§ 9 pm
§ Ms. Clare Short
I wish to support this group of amendments and to make it clear to the House that the Opposition's purpose in tabling new clauses 12 and 13 is to tighten up the conditions in which evidence that is obtained from confessions or searches is admitted in court to ensure that all such evidence is properly obtained.
New clause 12 provides that documents or property that is found as a result of a search cannot be used in evidence unless the search was properly authorised. New clause 13 provides that, in any case including evidence of confession or admission, it is necessary to prove that the confession was properly obtained. Amendments Nos. 181 to 184 inclusive seek to amend clause 69 in a similar way and for 95 a similar purpose. The intention behind the amendments is to ensure that strict rules of what is admissible in court should be used to ensure that the police behave properly in obtaining such evidence.
When we discuss the Bill and the thrust behind it we must be conscious of how malpractice in the past has undermined our liberties. We started, for example, with the original concept that everyone was free and innocent unless clear evidence was brought against him. It was originally thought wrong in law to detain people and question them to obtain evidence. At present, a confession is admissible at common law as an exception to the rule against hearsay evidence because what a person says of his own free will against his own interests is likely to be true.
How far we have moved over the years from that. The police have gradually enlarged the amount of questioning that they undertake and the period for which suspects are detained. The Government are legalising the gradual process of enlargement of police power and malpractice that has continued over the years. They tell us at the same time that they are not enlarging police powers, because those powers already exist.
We hope to achieve, through the amendments, an end to a similar process, when the police break the rules and the code of conduct in the Bill and introduce evidence from confessions that has been wrongly obtained or obtained from searches that were wrongly undertaken.
The amendments are extremely important. They will ensure that the police do not breach the rules but behave properly when they are questioning people and always obtain proper authorisation for a search. If they do not behave properly, the evidence that they obtain will not be admissible in court and, therefore, will be of no use to them. For that reason, I commend the amendments to the House.
§ Mr. Alex Carlile
We are concerned in this group of amendments and new clauses with two matters: confessions, and evidence obtained as a result of confessions by suspects. I shall deal with both aspects.
Confessions are a very dangerous form of evidence. That has often been held to be the case in court and there are many cases in which confessions have been excluded. There have also been many cases in which confessions have been admitted in evidence, in circumstances that have given rise to great disquiet and that have eventually led to wrongful convictions.
I should like to remind the House of the words of Lord Cooper of Culross, who was Lord Justice-General of Scotland at the time, in the case of R. v. Chalmers, which was reported in the Scottish Law Times of 1954, page 184. He said, in a very pertinent passage that puts confessions into their proper context:In the eyes of every ordinary citizen the venue … the police station … is a sinister one. When he stands alone in such a place confronted by several police officers, usually some of high rank, the dice are loaded against him, especially as he knows that there is no one to corroborate him as to what exactly occurred during the interrogation, how it was conducted and how long it lasted. If under such circumstances cross-examination is pursued with the result, though perhaps not with the deliberate object of causing him to break down and to condemn himself out of his own mouth, the impropriety of the proceedings cannot be cured by the giving of any number of formal cautions or by the introducution of some officer other than the questioner to record the ultimate statement. The matter may be put another way. The accused cannot be compelled to give evidence at his trial and to 96 submit to cross-examination. If it were competent for the police at their own hand to subject the accused to interrogation and cross-examination and to adduce evidence of what he said, the prosecution would in effect be making the accused a compellable witness, and laying before the jury at second-hand evidence which could not be adduced at first-hand, even subject to all the precautions which are available for the protection of the accused at a criminal trial.The dangers that were so well stated by Lord Cooper of Culross in that passage have been shown to exist in numerous cases. Some of them are very well documented. There is the Confait case, which is so well known that I do not need to go into detail. There is the Errol Madden case, which has been well documented by the National Council for Civil Liberties. Apart from those celebrated cases, there are many cases that any lawyer of experience —there are many in the House—will know involved confessions obtained in doubtful circumstances. It is particularly worrying that those confessions are obtained not only in the most serious cases such as the Confait case but in the most minor of cases.
Any solicitor or member of the Bar practising in the criminal field will be able to cite cases from his or her recollection that involve confessions, even in shoplifting or minor offences of assault, that have been obtained in improper circumstances.
In clause 69(2) there are two circumstances in which the court shall not allow the confession to be given in evidence. I am speaking in the broadest terms without going into the fine detail of clause 69(2). The first is oppression and the second isin consequence of anything said or done which was likely.… to render unreliable any confession".With regard to oppression, a worrying aspect of the clause is contained in subsection (8). Although "oppression" is not defined exhaustively and exclusively, a definition is given of oppression as includingtorture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).There is a risk—I suggest that it is a serious risk—that the courts will be restrictive in interpreting the meaning of oppression so that they will apply the ejusdem generis rule when they consider what oppression is. In other words, only the items and forms of conduct that fall within the general nature of the list in clause 69(8) will be regarded as oppression. Putting it at its simplest, it looks as if only rare examples of conduct will fall into the category of oppression. We should recognise that most police officers conduct inquiries with impeccable lack of oppression at the very least. Of its very nature, oppression involves deliberate misconduct by the police.
The other test—the test of reliability—is worrying because of its limited scope. It much reduces and dilutes the protection given to the suspect compared to the protection that he receives under the law as it now stands, which excludes any confession that is not voluntary as well as any confession obtained as a result of oppression. In many cases things may be said or done, often quite inadvertently and innocently, by the police officer, which may call the reliability of a confession into question, but which are not so serious as to render the confession unreliable. It is unacceptable for the police, whether acting deliberately or inadvertently, to employ conduct that renders a confession wholly or partly involuntary and be entitled to rely on that confession in whole or in part.
It is distinctly likely that if the test of reliability is introduced, it will have the perverse result that a modest breach of the code of practice of questioning will increase 97 the likelihood of a confession being admitted in evidence in a serious case because the court is bound to take a proportional view. If there is a modest breach in the code of practice in a minor case, it is likely that the court will exclude the confession, but if there is a modest breach of the code of practice in a serious case the court will not exclude the confession, no doubt employing the logic that a person is less likely to admit a serious case than a minor offence. That logic is false and unacceptable, and it illustrates how dangerous it is to remove the test of voluntariness from the law on admissibility.
Far more protection is needed than is in clause 69. It could be given by the inclusion—I do not understand why the Government will not include it—of the specific test of voluntariness in the Bill. One can think of many examples of the type of conduct involving a modest breach of the code. One might find the case in which the police officer says to the accused in an effort to speed things up, "Look, if you confess, you are in trouble, but you will not be prosecuted. You will get a formal caution". An example of greater misconduct would be the police officer who says to the accused, "Look, we were thinking of bringing your wife in and interviewing her about this, but let's get it over with. If you make a confession, we won't bother to do that". That is the type of case that may result in a confession being admitted, if the clause becomes law, which is not admitted at present.
I now move to the second aspect of the group of new clauses and amendments. New clause 10 deals with evidence which was obtained as a result of an excluded, or partly excluded, confession. Clause 69(5) provides that even if a confession is so badly tainted that it is excluded altogether, it will not mean that evidence obtained as a result of that confession is inadmissible. That means that if a police officer—I hasten to emphasise that it is rare, but it has happened—beats up a suspect in a cell, leaves him bleeding on the floor, but as a result obtains a confession that includes material evidence, either against the accused or the suspect, about where to find the weapon, or material information against others, the police will be allowed to rely on it, as will the prosecution. That forms one of the most ugly and threatening aspects of the Bill. Evidence which is so tainted as to be excluded by the court on the grounds of, for example,torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)will nevertheless be evidence which can be admitted in court.
I ask the House to take the view that new clause 10 represents a reasonable compromise between an absolute exclusionary rule—I agree with what my hon. Friend said about the difficulty of introducting that—and no exclusionary rule.
§ Mr. Bermingham
Does the hon. and learned Gentleman agree that the only way to discipline the collection of evidence is to have an exclusion rule? If the police or the investigating authorities know that evidence wrongly obtained or collected will not be admitted, there is no point in their committing the wrong to collect it.
§ Mr. Carlile
I agree with the hon. Gentleman to some extent. My instinct—this will be apparent from some of the amendments I have put down—as a Liberal is to say that if the police misbehave to such an extent that the 98 evidence that they obtain is tainted, it should be excluded altogether. However, my instinct as a Liberal, and as an ally of my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan), is coloured by my instinct as a lawyer. The result of putting together my instincts as a Liberal and as a lawyer—so that I become a Liberal lawyer—leads me to the conclusion that it is probably going too far to have a completely exclusionary rule.
I am led to believe that new clause 10, which was drafted with the assistance of members of the International Commission of Jurists and of Justice, has considerable support not only in the House, but in the other place, among some distinguished lawyers, and among others outside the House. I invite the Home Secretary and his Ministers who are here tonight to consider the new clause carefully before rejecting it out of hand and to consider whether a Government amendment might be introduced in the other place to give effect to the spirit of the new clause.
§ Mr. Ivan Lawrence (Burton)
I have considerable difficulty with this matter, and some sympathy with the mover of the new clause and with those who introduced the amendments. Britain has always had a rule that, with the exception of confessions obtained by pressure or trickery, or where prejudice outweighs the probative value of evidence, evidence unfairly obtained cannot be excluded. In other words, evidence is evidence, however it comes to light. The important question is always whether that evidence is true. The question now is whether the time has come to change that fundamental rule. Perhaps the discretionary way, which is a halfway house between what we now have and what is practised in the United States, should replace the existing rules.
I will say, for the benefit of advocates of the new clause, that the judges seem not too happy with the present position. The case of Sang, which my hon. Friend the Minister mentioned, reveals a lack of firmness about the judicial belief in the value of continuing this rule. Lord Scarman said that if three Lord Chief Justices did not seem to think that the rule was completely good, their views should not be rejected lightly. The three Lord Chief Justices were Lord Chief justice Goddard, followed by Lord Chief Justice Parker; followed in turn by Lord Chief Justice Widgery. One of Lord Chief Justice Widgery's utterances was frowned upon by the higher court, but it shows how some of the senior judges felt. The following is the frowned-upon quotation from the case of Jeffries v.Black in 1978, as reported in 66 Criminal Appeal Reports:It was open to Justices to apply their discretion and to decline to allow evidence to be given if it had been obtained by police officers by trickery, oppressive conduct, unfairly or as a result of behaviour which was morally reprehensible.The higher court said that that was not the law. However, Lord Chief Justice Widgery was merely repeating what had been said by two earlier Lord Chief Justices.
In the case of Sang, Lord Diplock and Lord Dilhorne took a very firm line on the exclusionary rule, hut Lord Fraser of Tullybelton, Lord Scarman and Lord Salmon appeared to be rather less firm in their commitment to it and struggled a little to find ways of reconciling conflict. However, the fact that senior judges are less happy than they may have been before with the whole concept of the exclusionary law does not, of course, mean that we must change the rules.
I shall outline why I believe that the time has not yet come to make such changes. First, the public interest in 99 finding out the truth in litigation or criminal matters is more important than how the evidence is obtained. I agree that if the important thing is to "play the game, old boy", there are often grounds for excluding evidence that would otherwise be admissible. The effect of making exclusionary rules more widespread than we already have them in their limited form would undoubtedly be to let more villains go than at present happens under the quite difficult procedures that I frequently use for support in court.
§ Mr. Alex Carlile
The hon. and learned Gentleman has spoken about the existing limited exclusionary rule, but is he really saying that he accepts the further limitation of the existing rule by what is contained in the clause? Does he accept that that is the reality of removing the concept of voluntariness from the law?
§ Mr. Lawrence
I do not accept that. No doubt my hon. Friend the Minister will answer the point that was made so eloquently by the hon. and learned Gentleman when he spoke before. I do not wholly accept that that is weakening the protection that the individual has under the existing law. However, I shall not be sidetracked. I shall leave it to my hon. Friend the Minister to reply rather more authoritatively and specifically to that point.
The public interest, as balanced between what is fair play, old boy or old girl, and finding out the truth of a man's innocence or guilt, comes down fairly and squarely on the side of truth.
Secondly, if we have yet another obstacle that the prosecution has to clamber over in a criminal trial, it will result in the acquittal of more guilty people than at present. I say that not just because in the odd case the only evidence admissible in court is that which would otherwise be excluded under even this discretionary rule, but because such obstacles delay the process of criminal trials.
There are trials within trials which delay the procedure. One of the objects of the latest reforms in criminal trial procedure is to try to reduce the incidence of trials within trials. To plug the same disc once again, I hope that we rapidly reach a situation in which tape-recorded interviews with suspects are the only acceptable way of introducing confessions in court.
§ Mr. Lawrence
If the hon. Lady will forgive me, I shall not give way as I do not wish to go beyond the time that has been broadly agreed for this debate. The delays and expense already involved should not be increased, because the end of delay is injustice.
Thirdly, if an exclusionary order is to be discretionary, it cannot be argued that it will act as a disciplinary element against the police. In this sphere, only if punishment is certain can one conclude that the police will be deterred. The Royal Commission's consideration of the American experience and the views of the Supreme Court about the effect even of a total exclusionary rule as a means of discouraging the police from breaking the rules show that there is even more merit in the argument than perhaps I have been able to adduce.
My fourth reason for resisting the proposal is that I believe that there is already sufficient protection against 100 abuse. There is the criminal law, by which a dishonest police officer may be deterred or eventually brought to book. There are disciplinary rules. There is also the civil law. Above all—I speak here with some experience in the courts — the jury provides protection against the unfair adducing of evidence. Even in my limited practice, there have been cases in which the only real explanation for the jury's verdict, when all the evidence suggested guilt, was that the jury did not want justice done in that way. The strongest justification for my contention that the present rule provides sufficient protection is the protection provided by the jury.
Fifthly, if the law is to be changed, even in this limited way, it would have to be proved that a great deal of good would result. I believe that the contrary is the case. Paragraph 4.125 of the Royal Commission report states:Only a minority of those who are, for example, stopped and searched by the police are arrested, and a sizeable minority of those whose property is searched are not charged. Of persons arrested a significant proportion is not subsequently prosecuted. The overwhelming majority of those prosecuted plead guilty. And only a proportion of those who contest their cases challenge the legality of the police exercise of their powers.In the view of the Royal Commission there is insufficient justification for any significant change, and in my view there is no justification even for the change now proposed.
Sixthly, the United States experience has not been particularly happy. The Supreme Court and judges lower down have complained for many years about the exclusionary principle, which was introduced and is maintained because there are two substantial defects in the United States criminal law system. First, the police are often biased, and admit it. Secondly, in many states judges are elected, so they are often ignorant of the law. Unless the individual is protected by some very strong rules, such as the exclusionary provisions, there will be precious little left of the liberty of the individual in some states of the USA. That is the general point made to us whenever we speak to very senior judges.
Those are six reasons why, although I have some hesitation, I still think that the time is not yet right for changes in even the modest way proposed. The case has not been made for such change. As a Conservative lawyer —and I pit myself against the Liberal lawyer, the hon. Member for Montgomery (Mr. Carlile)—I believe that before we make changes in fundamental principles of English law, a stronger case has to be made than has been presented to the House today.
§ Mr. Bermingham
It is for exactly the reasons that we have heard from the hon. and learned Members for Montgomery (Mr. Carlile) and for Burton (Mr. Lawrence) that we should take off our political hats and put on lawyers' caps when we talk about the value of evidence in the courts. For far too long there has been an almost laissez-faire approach in the court system. They say, "We know that it should not have happened. We know that the accused man should not have been hit. He should not have been kept at the police station for X number of hours. He should not have been told that his wife would be locked up. We know that that should not have happened, but we shall admit." We hear about the man who has been kept in the detention room for hour after hour. The police search his home. They get other evidence, which normally would not have been obtained if it had not been for the treatment that he received.
101 Regrettably it has often been the excuse of the faint-hearted that this is not the time. But there comes a time when someone has to say that, if we are to have a system of justice worth having, the evidence that comes before our courts, whether by way of confession, document discovered or item recovered, should be untainted. That is the only way that we can have a system of justice in which there is full confidence and for which there is respect.
It has a secondary effect. A police officer investigating a crime or interrogating a suspect knows that if he does not keep to the rules all his efforts will go for nought, and that is the finest incentive to keep the rules. It would sometimes pay civil servants and other who advise Governments and those who practise in the courts to speak to police officers 'doing the job at the "coal face" of investigations. Those police officers would admit that there was no mileage or credit in trying to break the rules.
If a police officer knows that the only credit for him is that of a conviction, that is the incentive that will drive him on. Unfortunately, in recent years that has been the incentive. Public opinion has said that we must get convictions. People are prepared to let standards drop because there is this great fear in society that one guilty man may get off unless we allow the rules to be broken. That is the wrong way of considering these matters. There was a time when we said that it was better for 10 to go scot free than for one innocent man to be convicted. It is about time that we began thinking again about the innocent man.
For those who have had the job of going into police stations night after night—and having done it so often in the past I ought to declare an interest, although it is probably well known—they are places of oppression and pressure. It is important that people who have been arrested are at least surrounded by some air of responsibility and some aura that the main aim is that all procedures will be carried out according to the book. That is all we ask.
§ Mr. Greg Knight (Derby, North)
Is not it also the case that the danger is not just from the officer who acts unlawfully to the extent of using physical violence against the suspect but very often the officer who just wants to cut a few corners? In many instances pressure is applied in a much more subtle way. For example, an accused person might be told that if he signs a statement and makes a confession he can have bail and go home to his wife and family immediately. Is not that the sort of subtle pressure that can often render a confession unreliable?
§ Mr. Bermingham
I am grateful for that intervention, because what the hon. Gentleman says is so true. That is what I call covert pressure rather than overt pressure, which is the thump round the back of the earhole which, regrettably, we have all known to happen in police stations. The covert pressure is often the inducement that if there is no confession the wife will have to be brought in and then the kids will have to go into care. Indeed, one police officer was daft enough to say that in my presence, but a timely intervention on my part destroyed that threat. However, lawyers are often not there in the early hours of the morning.
§ Mr. Lawrence
What relevance does that have to the new clauses and amendments? Under the existing law if 102 any pressure has been applied it is a matter that is raised by the judge, and, in his discretion, he can exclude the evidence.
§ Mr. Bermingham
The hon. and learned Gentleman is technically right but he mentions the word that is at the heart of the problem—discretion. New clause 13 says that there should be total exclusion if there is any pressure. There is no discretion. That is the principle behind what we seek to do tonight. I hope that the hon. and learned Gentleman will do me the courtesy of listening to the answer to his question. He is well learned in these matters and he will no doubt have experience, as many in the courts have, of that sinking feeling that the confession which seeks to damn a client has been obtained by covert pressure, as described by the hon. Member for Derby, North (Mr. Knight) in his intervention. Because of the discretionary rule, the discretion often falls against one's client and the matter is admitted. In those circumstances, justice is not always served.
If new clause 13 became law there would be an absolute prohibition on the admission of evidence obtained in contravention of the rules. That would have two effects. It would cut down the problems in the courtrooms. Everybody would know that improperly obtained evidence was not admissible. It would also act as a disciplining factor upon those whose job it is to collate and collect the evidence. Above all else, at the end of the day, we would not have cases such as the Confait case and others of wrongful conviction that have bedevilled the country over the past 20 or 30 years.
One can ask simply why there seems to have been a correlation between the failure to enforce the judges' rules of old and the increasing weakness of the judiciary on the question of admissibility of evidence that has allowed an increasing amount of evidence which, in the past, would have been excluded to be included. At the same time it has resulted in a number of cases where there have clearly been miscarriages of justice. The old expression that it is better to let 10 guilty men go free than one innocent man rot in gaol had a lot of merit in it and it is the philosophy that lies behind the amendment standing in my name and those of my hon. Friends. Justice is too precious a creature to be tampered with. It is too precious a creature to be lazy with. It merits and demands absolute values and absolute values demand absolute propriety in the way we collect and collate our evidence. That is why I commend the new clauses to the House.
§ Mr. Mellor
I am glad to have the opportunity of replying to the debate. If I do so in fairly short order I hope that I may be forgiven. I admire the ingenuity of those who reworked fairly well-mined ground in bringing forward these new clauses but we properly spent a number of sittings in Committee on what are serious and important matters. I refer hon. Members who are interested in my views to the minutes of the Committee proceedings.
This has been a lively debate. I am particlarly glad to see the hon. and learned Member for Montgomery (Mr. Carlile) in his seat. I warmly congratulate him on his well-deserved honour of becoming one of Her Majesty's counsel. It was diverting to sit back and listen to the duel of the titans between the hon. and learned Member for Montgomery and my hon. and learned Friend the Member for Burton (Mr. Lawrence), proving, as if we needed proof, why lawyers are not always regarded as a wholly good thing in the House of Commons.
103 The hon. and learned Member for Montgomery spoke about the need to keep these matters under consideration. We certainly do that. This is not a matter on which anybody wishes to be dogmatic. It is a matter of severe practicality, and a matter in which opinions vary in the different jurisdictions of the world. It is one in which I think the debates in the House of Lords, in which senior judiciaries will have the chance to play a part, will be particularly interesting. Nothing has happened this evening to lead me to think that we have not drawn the line in the right place. The matter concerns us sufficiently to be very interested in what is said in the other place.
It has to be borne in mind that, with the exception of the law on confession evidence, it has always been a principle in English law that evidence is evidence, and that the question of the weight to be attached to the evidence is one for the jury. The judge's job, as Lord Diplock made only too clear in the case of Sang, is to determine what use the prosecution may make of the evidence, not whether the evidence should be before the jury. We must have regard to the fact that anyone in a case who takes exception to evidence, and who argues that the evidence was improperly obtained, or that weight should not thereby, or for some other reason, be given to it, has the perfect opportunity to put that case to the jury with the expectation that, if it is credible, the jury will not be satisfied to the standard of proof required. It is that that gives me pause in thinking that we need to have a compelling case before we widen the exclusionary rule from confession evidence to evidence generally. We shall be interested to see what happens in the debate in the other place.
I do not belittle new clause 10, because I know the pedigree that the hon. and learned Member for Montgomery asserts for it, even though, of course, it would have been more than adequate if he said that he had dreamt it up in his bath. However, the fact that it comes from Justice behoves one to make obeisance in that direction.
As to what has been said on confessions, the hon. and learned Gentleman may have been a little hard in what he said about clause 69. We are proud of clause 69. We believe that it represents a major simplification and improvement in the entangled law on confessions. The hon. and learned Gentleman was talking about his Liberal conscience. He is obviously a Conservative to the extent that he cleaves to long-established things. His affection and enthusiasm for the old rule on voluntariness is moving in the extreme. The fact is that it is because the law on the admissibility of confessions has been widely regarded as being so unsatisfactory, and because particular problems have attached to the concept of voluntariness, that the Criminal Law Revision Committee and others took the view that the law needed a thorough overhaul.
The Criminal Law Revision Committee, not a thurible vessel, like Home Office Ministers, determined that the appropriate concept to be introduced was the concept of unreliability. That is, as it were, the flag that we have run up, believing, I hope rightly, that we are doing so in accordance with the best judicial view of what is the appropriate test to be applied in what is one of the most difficult areas with which the courts have to deal. Confessions can be the best evidence. If somebody makes an admission, there is no stronger evidence, if it is a proper and valid admission, that anyone could want. It 104 conclusively settles the matter. However, if the admission is extracted by improper means, it becomes some of the most dangerous evidence of all. That is why we have always had in our law arrangements to take great care over confessions.
I believe that clause 69 is a major step forward in improving and clarifying the law and I am glad to have been given the opportunity to reassert my confidence in that clause. I do not believe that the new clauses would be an improvement; indeed, new clause 13 would reinsert some of the confusion that we have sought to purge.
We shall wait with interest to hear what is said in another place, but I believe that the Bill should leave this House in the form in which it emerged from Committee.
§ Question put and negatived.