IMPROPERLY OBTAINED EVIDENCE

HC Deb 29 October 1984 vol 65 cc1011-32

Lords amendment: No. 209, after clause 71, insert the following new clause: .—(1) If it appears to the court in any proceedings that any evidence (other than a confession) proposed to be given by the prosecution may have been obtained improperly, the court shall not allow the evidence to be given unless—

1. (a) the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully and in accordance with a code of practice (where applicable) issued, approved, and in force, under Part VI of this Act; or
2. (b) the court is satisfied that anything improperly done in obtaining it was of no material significance in all the circumstances of the case and ought, therefore, to be disregarded; or
3. (c) the court is satisfied that the probative value of the evidence, the gravity of the offence charged, and the circumstances in which the evidence was obtained are such that the public interest in the fair administration of the criminal law requires the evidence to be given, notwithstanding that it was obtained improperly.

(2) For the purposes of this section, evidence shall be treated as having been obtained improperly if it was obtained—

1. a in breach of any provision of this Act or of any other enactment or rule of law; or
2. (b) in excess of any power conferred by or obtained under this Act or any other enactment; or
3. (c) in breach of any provision of a code of practice issued, approved, and in force under Part VI of this Act; or
4. (d) as a result of any material deception in obtaining or exercising any power under this Act or any other enactment."

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The Secretary of State for the Home Department (Mr. Leon Brittan)

I beg to move, That this House doth disagree with the Lords in the said amendment.

Mr. Speaker

With this it will be convenient to take the Government amendment in lieu thereof and the proposed amendment thereto.

Mr. Brittan

With the permission of the House, if it is necessary I shall deal later with the issues raised by my hon. and learned Friend the Member for Fylde (Sir E. Gardner) in relation to his proposed amendment to the new clause.

For many years now, the question of the admissibility of evidence that has been improperly obtained has been a vexed question among those involved in the administration of criminal justice. Some have argued that it should automatically not be admissible at all. I find it difficult to accept that. It may be that there has been a minor breach yielding a very cogent piece of evidence. It is difficult to believe that in those circumstances a guilty man should go free as a means of encouraging the observance of a code by the police. Many would think that the right course in such a case is proper disciplinary action against anyone who has been in breach of a code.

On the other hand, there may be circumstances in which it would be quite wrong that evidence should be admitted if improperly obtained. The extent to which under the common law the courts have had a discretion to exclude such evidence has been much canvassed. Then came the decision in the case of Sang. Now that we are legislating afresh, however, I think that there is no need to argue about what the law was as opposed to what it ought to be. There is common ground that in some circumstances courts should exclude evidence. The difficult question is what those circumstances should be.

Hon. Members will know that amendment No. 209 as it stands was agreed to in another place on Report. The clause seeks to exclude improperly obtained evidence, other than confessions, unless the prosecution prove to the court either that the evidence was obtained lawfully or that if it was obtained improperly the matter was trivial or the public interest requires the evidence to be given. After very careful personal consideration and detailed consultation with colleagues, I have formed the view that the clause as it stands is not one which the Government should accept, but I hope that the House will feel that the Government clause tabled in lieu is less difficult to operate while demonstrating a positive response to the same concerns that were reflected in the new clause.

As I have made clear, in our view it can indeed be a proper part of the judge's function to have regard to the way in which evidence has been obtained and to refuse to admit it if those circumstances bear upon the fairness of the proceedings. That is a principle which we are prepared to see enshrined for the first time in statute. It corresponds very closely with what Lord Scarman described when he said on Report that it is left to the discretion of the judge to determine whether the fair administration of the criminal law requires the evidence to be given." [Official Report, House of Lords, 31 July 1984; Vol. 455, c. 654.] It also acknowledges a possible link between the way in which evidence was obtained and the fairness of its use in court.

If there is that common ground, what is it about the clause that presents us with such difficulties? There are consideral practicable difficulties, to which I shall come, but there is also the more basic question of what is the right approach to the whole problem.

We should be clear about the results of the new clause. It could lead—for all its qualifications, it must lead, in an appropriate case, for otherwise it would be useless—to the acquittal of a guilty man, not because a confession has been wrung from him by oppression, nor as a result merely of giving him a fair trial, but simply because evidence has been obtained in breach of the law or of the codes of practice. I appreciate the intention, which is to mark society's disapproval of the conduct, as it may be, of the police. But the penalty is not levied on the police. It is levied on the public, in the shape of the acquittal of a guilty man.

Mr. John Morris (Aberavon)

Will the right hon. and learned Gentleman give way?

Mr. Brittan

Perhaps I could develop the argument, as I may well cover the point that the right hon. and learned Gentleman wishes to raise. If he wishes to intervene later, I shall be happy to give way.

The approach that I have described seems to me to be wrong in principle. The purpose of excluding evidence should not be disciplinary. It should be to avoid evidence being adduced which if adduced would lead to an unfair trial. That is why our alternative new clause focuses directly on the trial itself. It accepts that the circumstances in which evidence was obtained may be highly material, but it makes the ultimate test of admissibility the effect of the admission of such evidence on the fairness of the trial itself.

So much for the principle, but we are equally concerned about the effect which the new clause passed in another place would have on the work of the courts.

Mr. John Morris

Surely, the question whether the guilty man got off would be dependent on the decision of the trial judge to exercise his discretion in accordance with the limits set out in the new clause?

Mr. Brittan

That is certainly so. None the less, I do not resile from the proposition that, although there are qualifications, the basis of the principle of the new clause remains as I have said. It remains possible, while meeting substantially the same concerns as have been expressed and have been a matter of debate in legal and police circles for a long time, to approach the problem in another—;and in my view a preferable — way. I refer to the general principle in the new clause moved by Lord Scarman. I accept that it has important qualifications, but it none the less remains the principle.

We are equally concerned about the effect which the Lords' new clause would have on the work of the courts. One of my principal concerns is bound to be to ensure that neither the accused nor the whole criminal justice system bear the burden of unnecessarily lengthy trials. That is at the heart of our objection to the placing of a heavy onus of proof on the prosecution as soon as the way in which evidence was obtained is even raised as an issue. Under the new clause, as soon as the issue is raised—as soon as it appears to the court in any proceedings that any evidence proposed to be given may have been obtained improperly—the onus falls on the prosecution to prove to the court beyond reasonable doubt that the evidence was obtained lawfully. Otherwise, one of the other qualifications may apply.

Under this clause the prosecution must show that there is no cause for concern; or, if there is, the court must be satisfied that the evidence should none the less be admitted. Let us be clear about what will actually happen in court. Every competent defence counsel will raise whatever issue he can about the way in which every shred of evidence was obtained; interminable and complex argument about the propriety of those circumstances will ensue. When that issue is decided, the court will then have to test admissibility against a number of criteria; and it will, I suggest, have an uphill task before it when it comes to do so.

How will the courts judge whether what was done by the police was of material significance in all the circumstances for the test in subsection (1)(b)? In what sense do the probative value of the evidence and the gravity of the offence charged bear upon the public interest in the fair administration of justice? Do high probative value and a grave offence suggest inclusion, or exclusion? We are not told. I would guess that the way in which the court is supposed to address the matter is perhaps this: that if the probative value is high and the offence grave, the evidence should be submitted even if the impropriety is great. Can it be right for investigators to have it implied in statute that they may do as they please providing the charge is sufficiently grave at the end of the day? Would such an approach really stand up to criticism? The court must also consider whether the obtaining of the evidence was improper in the sense of one of the definitions in subsection (2), including, it seems, investigating whether a magistrate was right, for example, to issue a search warrant.

I am not suggesting to this House that a court cannot decide all these issues, although they are perhaps a tall order for magistrates. But I do suggest that the court should not have to address itself to these complex criteria in the course of ordinary criminal proceedings. I hope that I have explained to the House why we do not think this provision will work well. But I have said that we accept its prime aim to enable courts to take into account the circumstances in which evidence was obtained. Perhaps I may, therefore, turn now to our alternative proposal and explain its merits as we see them.

Before going into detailed areas, I feel I should explain to the House exactly what our amendment provides. In replacing Lords amendment No. 209, the amendment gives a court discretion in criminal proceedings to refuse to allow any prosecution evidence to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

We think that this resolves the difficulties and objections that I have identified in the clause as it stands. The provision simply allows the court to exclude evidence if the fairness of the proceedings would be adversely affected, and explicitly requires the way in which the evidence was obtained to be considered in arriving at any such decision.

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I hope that hon. Members will agree that we have here a clause simple and clear in form, yet suitably flexible. Because it is simple it does not purport to provide a set of examination questions which the court must apply, or try to cover every circumstance explicitly. If we are discussing conferring on the court the residual discretion, which Parliament might feel appropriate, to exclude evidence if it has an undesirable effect, we must recognise that the multiplicity of circumstances in which that may arise makes it impossible, or at any rate undesirable, to confine the matter to a set of specific criteria. The simple and flexible test that my right hon. and learned Friend the Lord Chancellor has advanced, an adaptation of which appears on the Amendment Paper, is the appropriate way forward.

Our amendment also differs from the clause in an important respect in accordance with the anxieties of some who have raised these issues. There is no restriction in our clause on applying the test of admissibility to confession evidence. Although we have two later clauses in the Bill which go carefully into that, I see no reason to omit a specific and significant form of evidence from this clause. Our amendment will, I suggest, provide a framework for condidering the fairness of admitting all forms of evidence on which the prosecution proposes to rely.

I should like to emphasise that our amendment is by no means a mere negation of the present clause. I accept, as I have said, the spirit in which the clause was made and much of the underlying thought behind it. I should also draw hon. Members' attention to the fact that what we propose today differs somewhat from the clause on similar lines which the Government tabled, but which was not considered on Report in another place. The changes widen the scope of application of the clause. First, our amendment is no longer confined to evidence "obtained from the accused" on which the prosecution proposes to rely. On reflection we felt that the restriction was artificial, and we accept that evidence on which the prosecution proposes to rely means evidence from any source and not only evidence—including confession, as I have said—from the accused. Secondly, we have been ready to remove the word "prejudicial" from our original proposal in the context of being prejudicial to the fairness of proceedings. I am grateful to Lord Scarman for raising this point. "Prejudicial" is too weighty and narrow in scope and has accordingly been replaced by a reference to adverse effect.

What, therefore, is the general effect of the amendment which I am commending to the House? Quite simply, the effect is one of fairness: fairness to the accused, because decisions on admissibility of evidence against him should not depend, for example, on the charge he faces; fairness to the public, as evidence will not be excluded purely for some reason lying outside the question of the guilt or innocence of the accused; and fairness to the court, the liability of which to time-consuming disputes about the admissibility of evidence will be greatly reduced by this amendment so that its proper function—to allow a fair trial for the accused—can be adhered to with efficiency and effectivness.

I am, in short, confident that this amendment, which I commend to hon. Members, is preferable to the present clause. Much of the underlying thinking is there but our proposal will also simplify procedures on exclusion of evidence, will reject evidence the use of which is unfair for whatever reason, and will include all relevant and good evidence in the best interests of justice and of society.

Mr. Stuart Bell (Middlesbrough)

I should like to speak to the Lords new clause. Its merit is that it is as clear as it is cogent. It is clear in that, proposing the discretionary exclusionary rule — as opposed to a mandatory exclusionary rule such as is extant in the United States—it covers all proceedings in criminal courts of law, including magistrates' courts. It provides for a challenge of the propriety of the evidence the prosecution proposes to give and places the onus of proving the propriety of such evidence upon the prosecution who must satisfy the court beyond reasonable doubt. It is cogent in its definition of propriety which, significantly, includes material deception. It should be contrasted with the amendment proposed by the right honourable and learned Gentleman in which the only criterion brought forward is that of fairness — he emphasised that word — not administration of justice, the gravity of the offence, the extent of the impropriety, whether it has a material effect or whether it runs to the probative value of the evidence. The wording of the Government amendment is too loose.

The right hon. and learned Gentleman referred to the removal of the word "prejudicial" as a result of comments in another place, but what do the words "proposed to rely" mean? Of course the prosecution proposes to rely on the evidence which is given, but certain evidence might not amount to very much. Alternatively, it might amount to a great deal. If the Government amendment were accepted the court would not be able to decide for itself what weight to place on this section.

Already, in my mind's eye, I can see the learned judge scratching his wig. Because it is vague and parsimonious —the Home Secretary called it simple—it requires the addition of a catch-all to say that nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. It is a kitchen-sink clause, or what Americans call boiler plate. It covers everything, but it is the final refuge of the parliamentary draftsmen.

It is hardly surprising that, in those circumstances, the honourable and learned Member for Fylde (Sir E. Gardner) originally saw fit to move an amendment which would bring that of the Government more into line with that proposed by the other place. We are entitled to wonder why that of the other place was not accepted at once. It was seeking only to maintain the balance between the rights of the citizen and the need to apprehend the criminal or, as it has been put admirably, to safeguard citizens against the misuse of police power in the collection of evidence for purposes of criminal proceedings". The Government's amendment tries to cover evidence that is obtained improperly. It goes to fairness and the improper use of evidence. I welcome the alteration which means that evidence can now come from any source rather than sources that are limited to the accused. The Government's amendment seems rather wide for the Bill's purpose, however. It is supposed to show flexibility, it is supposed to be realistic, it is supposed to hit the right target, and it is intended to avoid artificiality. All that: is as it may be, but it advances neither the cause of the suspect nor the administration of justice.

We have no wish to shoot the pianist—we have no wish to sack the parliamentary draftsmen—but the net has been cast so wide that it helps neither those who administer the law nor the objects of its administration.

A second significant reason for introducing the Government's amendment was given in another place—to ensure for the citizen a fair trial when facing a criminal charge. The House may think that those are honourable aims which are honourably articulated. It may feel that they fall within the remit that has guided two Home Secretaries in the past two years in regard to the Bill to maintain the delicate and fragile equilibrium between the citizens' rights and the obligations of the police.

Had we been debating an exclusion rule that was absolute—known in the United States as an automatic exclusionary rule — there might have been some justification for the Government's apprehension and for the amendment; but we are not. The exclusion rule embodied in the Lords' new clause is flexible, evenhanded, and provides a restraint for the garnering of evidence which may turn out: to be unlawful or improperly obtained. It is discretionary and falls within the purview of the sound administration of justice. As a barrister I appreciate that the new clause has been constructed logically. It has been constructed in a masterly way which appeals to lawyers and which would. appeal to judges, especially when one considers the shortness of the Government's amendment.

There are to be rules about the propriety on which evidence is obtained. A criticism of the amendment in the other place was that that would give rise to more trials within trials. The Lord Chancellor described that as a necessary evil. If evidence is obtained improperly and if there is to be a trial within a trial, so what? The Secretary of State referred to the danger to society caused by the acquittal of a guilty man. That is a remarkable expression of what he feels would be the consequence of a trial within a trial and of the disallowance of evidence which might lead to a conviction. I believe that trials within trials help to protect the suspect. Only when a suspect is properly protected can we have absolute certainty beyond reasonable doubt of his culpability. That is a better definition of trials within trials and the exclusion of evidence than that given by the Secretary of State.

That does not mean that evidence will be excluded. That would be done at the judge's discretion. He can take into account its probative value. It is contended that additional trials within trials are not in the interests of justice and that they overburden the administration of justice. That would not occur to a man charged where the prosecution relied on evidence improperly obtained. He would rightly suffer a sense of grievance which would be dissipated if he could see his barrister battling on his behalf in a trial within a trial on the propriety of the means by which such evidence had been obtained. The Secretary of State assumed that an aggressive and successful barrister or defending counsel would use all means at his disposal to examine the evidence to see what could be excluded to obtain an acquittal. That may not be the case, but certainly the ultimate discretion rests with the judge.

We are witnessing the dangers of what is known as the agent provocateur. Day by day we see his deceit and deception. Are they to be the evidentiary norms of the future? I do not wish to make a generalised criticism of the police, but is it right that plain clothes officers should circulate in gay clubs in London dressed in tight blue jeans, open-necked shirts, black shirts, black jackets, training shoes and a chain around their necks? There is no justification for any plain clothes police officer to do so, not even for the purpose of checking allegations of breaches of the licensing laws.

Some would say that we are wading out from the waters of the common law and that through this new clause we are creating new concepts. That is not an entirely accurate description of the common law, as the Secretary of State acknowledged. Under common law there has always been discretion vested in a judge to refuse to allow evidence to be given if in his view oppressive means were used to obtain it, or if there had been an abuse of procedure. A judge would take into account the prejudicial effect of such evidence and decide whether it outweighed its probative value. That discretion existed for a long time prior to 1979.

The Secretary of State referred to the Sang case and said that we should not examine the background to it because we were making new law. I agree with that. However, if a judge in any criminal court thought that evidence had been improperly obtained, he had the discretion to disallow it, even if it was relevant and had probative value. That discretion was eliminated in the other place in 1979. Its elimination was not well received by the profession. It effectively destroyed the balance between prejudicial effect and probative value. It knocked out the first factor because it became easy for a judge to conclude that if evidence had probative value he might disregard its prejudicial effect.

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In the context of the Bill, linked as it is to an extension of police powers—we have often heard it argued that the powers are not being extended, but merely codified —it is important to ensure a citizen's right to a fair trial. Unless we do so, we risk alienating public opinion at a time when the House should be seeking to secure public confidence in the police.

No evidence should be admissible where it has been obtained illegally, unfairly, by trick or by other misrepresentation other than in accordance with the new clause under which the judge has discretion to allow it. We should depart from the idea that it is admissible only where the actions of the prosecution amounted to an abuse of the process of the court and were oppressive.

I commend the Lords' new clause to the House for its cogency and clarity, because it seeks to protect the ordinary citizen, and encompasses legal concepts which are understandable to barristers and judges. Hon. Members are elected to ensure that good laws are passed —good for the ordinary citizen in that they protect his rights and limit the rights of those in power with authority. The new clause is good law and as such it is worthy of the House's support.

Sir Edward Gardner (Fylde)

On 31 July on Report in another place a majority was in favour of introducing this Lords amendment. Before I put forward some views which may be of interest to the House and which I hope will result in our thinking about the virtues of the amendment moved by Lord Scarman as against some of the defects of the Government's new clause, I wish to congratulate the hon. Member for Middlesbrough (Mr. Bell) on his place at the Dispatch Box and to wish him well.

The amendment allows powers to courts to exclude evidence that has been obtained improperly. The amendment makes good law and good sense. I must make a distinction between it and another amendment with which the House will deal later, which deals with making racial discrimination a disciplinary offence, which, in the view of most Conservative Members, makes neither good sense nor good law.

It has been said many times, but it cannot be repeated too frequently, that this is a momentous Bill. It is a Bill of profound importance to the future administration of our criminal law and it must go from the House in the best possible state. The Scarman amendment, if I may so call it, seeks to give the court powers to exclude evidence that has been obtained unlawfully or by an abuse of the powers given to the police by the Bill. The Government's new clause, which is put forward as a substitute for the Scarman amendment, dilutes, in language that is too wide and too imprecise, the virtues of the Scarman amendment, and it leaves out altogether the guidelines that are attached to the Scarman amendment. Those guidelines are important because in magistrates' courts, for example, lay magistrates are advised by clerks of the court, and if such a court must apply the law — I hope that his view is shared by most hon. Members—Parliament has a duty to give the court as much guidance as possible on the way in which it believes the law should be applied.

My right hon. and learned Friend the Home Secretary, in his present position and when he had a distinguished career at the Bar, has shown himself throughout as having no rival as one who advocates that our laws should be

sensible, easily understood and just and result in fairness to those who come before the courts. It may sound to the House as though this is an argument put forward by a lawyer on a complex and esoteric legal point. In fact, the contrast between the Scarman amendment and the Government's clause is profoundly important. If one accepts Scarman, one accepts a means of giving the courts the powers that they need to make sure that the balance between the duties and the powers given to the police by the Bill are properly exercised. That is why I feel so strongly about the need not only to set out the law with the greatest clarity that we can achieve but to give the guidelines which the Scarman amendment undoubtedly does.

I draw the attention of the House to paragraph 131 of chapter 4 of the Philips report on criminal evidence and procedure, which states: Parliament should take the responsibility for deciding what the rules should be. Later, it states: The police need a greater measure of certainty than the existing rules and the manner used to enforce them provide. They should know that if they comply with the rules their evidence will be admitted…If the police do not comply with the rules or if they use the exceptions unreasonably, the consequences should be known to them for certain. The Philips report came to no firm conclusion because, as it said, this is an extremely difficult, complex and important point that must be left to Parliament to resolve.

The resolution of the problem is found in the language and the drafting of the Scarman amendment. It allows the courts to exclude evidence unless the court is satisfied that the impropriety by which the evidence was obtained is of no material significance or—I must read clause 2(c) of the amendment in full to give the House the picture—if the court is satisfied that the probative value of the evidence, the gravity of the offence charged, and the circumstances in which the evidence was obtained are such that the public interest in the fair administration of the criminal law requires the evidence to be given, notwithstanding that it was obtained improperly. Then come the vital guidelines. If we remove them, we leave the court blind and give it no assistance as to how this set of rules should be applied.

The guidelines are simple, easy to understand, comprehensive and practical. I shall not read them all, because they can be seen by hon. Members. However, I can tell the House as a fact that the Scarman amendment was not only passed with a majority in another place after the most careful—one might almost say intensive—consultation and deliberations, but the other place decided that this was the way in which the law should be applied when there was impropriety in the obtaining of evidence. That view of the law has been supported by distinguished lawyers of great experience in the other place and by the Law Lords who have considered it. It is also supported by the executive committee of Justice, of which I am a member, although that is not the reason why I have spoken on behalf of the amendment. If it has not divided lawyers, the amendment has certainly caused much debate among them.

I concede that there are respectable arguments on both sides of the fence. One could argue that the Bill would be better if no new clause or amendment were added to deal with the exclusion of improper evidence. One could argue that the Government's new clause is impeccable, but in my view and in the view of many others—I hope that my brief review of the advantages of the Scarman amendment has satisfied others of this—the Scarman amendment is superior to the Government's new clause. It is precise, it gives guidelines, and the test is whether the evidence was obtained properly and with propriety. That is an essential test, because it provides the means of deciding whether the police have abused their powers. One could say that if the police abuse their powers, the Bill provides a disciplinary procedure that will enable the police to be separately disciplined for what they have done; but that would be little comfort to the defendant who was convicted on evidence that was improperly obtained.

An amendment stands in my name and the name of my hon. Friend the Member for Leicester, East (Mr. Bruinvels). I was nervous about saying to my right hon. and learned Friend—I did not want to do it—that I did not like his new clause and would not support it. With the assistance and advice of my hon. Friend, I tried to table an amendment which would graft on to the Government's new clause the guidelines which many of us feel are so necessary. That has been done, but in my view and in the view of others who are perhaps more qualified in parliamentary drafting, there is an inherent defect in my amendment because the graft is not perfect. That could have been dealt with had there been time, but there is none. We are working more or less second by second, which is why I shall resume my seat almost immediately. As a result, one has no choice but to choose the best available. At present, the Scarman amendment would best deal with the problem that we are seeking to solve, and I respectfully suggest that it deserves—and from me it will get—unqualified support.

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Mr. Robert Maclennan (Caithness and Sutherland)

The Home Secretary will recall that at an earlier stage of the Bill's progress through Parliament I moved a new clause designed to achieve the effects of the new clause moved by Lord Scarman and carried by another place. It is fair to say that Lord Scarman's new clause made two important changes to the draft which I had tabled, both of which were significant improvements.

The first was to remove from my new clause the clear defect that the court would rule only on the representation that evidence had been illegally obtained. Lord Scarman's new clause provided that it would be excluded if that appeared to the court itself without representations having been made. The second improvement was that Lord Scarman widened the ambit of his new clause to exclude evidence improperly obtained, and he defined that.

Subject to those two significant amendments, Lord Scarman's new clause is quite similar to the one that I moved earlier. Therefore, I do not propose to re-rehearse the arguments in favour of my new clause. In a sense the Home Secretary sought to answer some of the points that I deployed in that debate. He sought to describe the principle underlying the new clause which has come to be known as the Scarman amendment. He said that it appeared that the object of the new clause was to mark society's disapproval of illegally obtained evidence and the use of it in the court to obtain a conviction. Although I and others have spoken of the value of such a discretionary exclusionary rule in a Bill embodying the codification of police powers, that is not the most important reason for accepting the Scarman amendment.

It is more important that it seeks to embody what Lord Scarman described as the "protective principle" to which the Philips commission gave considerable attention. That is the most important issue to which we should address ourselves. The Philips commission said: Where certain standards are set for the conduct of criminal investigations citizens can expect, indeed they have a right, to be treated in accordance with those standards. If they are not so treated then they should not be put at risk. Nor should the investigator gain an advantage. The courts have the responsibility for protecting the citizen's rights. It added: The most appropriate way to do so in these circumstances is to remove from the investigator his source of advantage and from the accused the cause of his risk—that is, to exclude the evidence. The underlying principle is not to mark society's disapproval of the practice but to protect an individual before the courts of the realm whose conviction may turn on the deployment of evidence which has been improperly obtained.

Although I acknowledge that the Home Secretary and the Government have recognised the force of the arguments in favour of a discretionary exclusionary rule, the practical objections that the right hon. and learned Gentleman raised to Lord Scarman's amendment are as nothing compared with the practical objections that can be raised against the Government's new clause. I welcome the hon. Member for Middlesbrough (Mr. Bell) to the Opposition Front Bench on his debut. I adopt without elaboration the arguments that he used in support of Lord Scarman's amendment, but he did not address himself to the defects of the Government new clause.

The Government new clause gives the court discretion to refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. That is a rule of such obscurity that it will be extremely difficult to apply it in practice. I do not see how that permissive power will in practice be used by the court. If it becomes apparent during the prosecution's submissions that on the face of it some evidence was improperly obtained, or if there is an admission of the fact that it was improperly obtained, the Home Secretary might think that the court would move to exclude it. But unlike Lord Scarman's amendment, the Government new clause does not make clear precisely what sort of argumentation might be acceptable before the court about whether the evidence had been properly obtained. The Home Secretary was, I think, frightened of a trial within a trial—[Interruption.] He shakes his head negatively.

Mr. Brittan

There is no question but that issues will arise that will have to be addressed. The question is as to the complexity and duration of trials within a trial, not whether the issue will have to be considered if it does properly arise.

Mr. Maclennan

I am obliged to the Home Secretary, because I think that, by that intervention, he has conceded a substantial part of our case, which is that if there is to be an argument about the admissibility of certain evidence, it is highly desirable that the court, and counsel appearing before the court, should know what is the nature of the arguments that will be germane before the court, and what are the criteria that the court should have in mind in determining whether to exclude evidence. To leave the court without such guidance is to make it highly likely that there will be a wide diversity of practice, and it may be many years before the common law develops in such a way as to make it certain what is to be done in such circumstances.

It is common ground that it is our desire in the Bill to seek to codify practices and, as far as possible, to remove doubt about what is proper and improper and what are the consequences of improper proceedings. I am afraid that the Home Secretary's substitution in lieu of Lord Scarman's amendment makes it extremely unlikely that we shall help to codify the practice in the way that the House is anxious to do.

It may not be one of the strongest arguments in favour of Lord Scarman's amendment that it underpins the codification of the police powers and the code of practice that will become part of the Bill. The argument that such an exclusionary rule is a valuable sanction against the abuse of these powers is not one to which, on balance, we should give the greatest weight. I should not choose to give it great weight if I felt that, by including it in the Bill, we were imposing a more difficult task on the courts. However, I think that we are doing the reverse. Lord Scarman's amendment greatly clarifies and simplifies the task of the court, and therefore should be accepted.

Mr. Derek Spencer (Leicester, South)

Is it not a fact that, under the present law, although evidence may be technically inadmissible, the judge has a discretion to exclude it if the probative value is exceeded by its prejudicial value? Does the hon. Gentleman think that that rule works well?

Mr. Maclennan

It could work better, and the debates that we have had on this important amendment are designed to ensure that it does work better. However, I remind the Home Secretary of something about which their Lordships were reminded in the other place, which is that the common law of Scotland already has the provisions of the Scarman amendment. It has worked in practice extremely well, and that was testified to by a former Lord Advocate, Lord McCluskey, in the other place.

At the end of his speech, the Home Secretary said that he was seeking to obtain a balance of considerations within this clause, whereunder the Bill was fair to the accused, fair to the public and fair to the court. Couched in that language, no one could conceivably object to the Home Secretary's objectives. However, it is not fair to the accused to breach what Lord Scarman called the protective principle. I fear that, because of the vagueness of the Government's amendments, there is a serious risk that fairness to the accused will not be observed and evidence that should be excluded because it has been improperly obtained will not be excluded because at the time when it becomes an issue it has not been subjected to the kind of tests set out in the Scarman amendment.

On the fairness to the public point, the public's interest is not always served by obtaining a conviction. Undoubtedly, any exclusionary rule or any abuse that leads to the obtaining of evidence by improper means may lead to the acquittal of a guilty person. That is so even if the Home Secretary's amendment is carried. There may be guilty people who, in the view of the court, have to be acquitted because of the impropriety that led to the obtaining of the evidence. On the test of fairness to the public, as expressed by the Home Secretary, his amendment is no more satisfactory than Lord Scarman's.

4.45 pm

As to the fairness to the court, for the reasons that I have given about the absence of criteria in the Government's amendment, I regard the Government's amendment as highly unfair to the courts and as such one that they would find extremely difficult to operate. This is a central issue, and undoubtedly one of some difficulty. The hon. and learned Member for Fylde (Sir E. Gardner) spoke about the Philips commission, and the duty of Parliament to make good the lacunae in its report. It is proper to exercise that function to the best of our ability, facing all these arguments squarely.

The Home Secretary and the Government would be wise to listen to the verdict of those distinguished lawyers in the other place and in this House — I naturally exclude myself from that category—who have said that the Scarman amendment is not only sound in principle but workable in practice.

Mr. Nicholas Lyell (Mid-Bedfordshire)

I rise to support the Government's amendment as against Lord Scarman's amendment.

Mr. Gerald Kaufman (Manchester, Gorton)

The hon. and learned Gentleman is the Attorney-General's PPS.

Mr. Lyell

That is true, but I have a mind of my own.

The object, as even those on the Opposition Front Bench will appreciate, of both Lord Scarman's amendment and the Government's amendment is to achieve fairness in the trial of the accused. It is worth bearing in mind that when the other place passed Lord Scarman's amendment there was no clause resembling it before their Lordships. The Lord Chancellor had it in mind to bring forward a similar clause, but it was not before the other place. At that stage, there was no protection such as that provided by either of these amendments.

My objection to Lord Scarman's amendment is simple. It is too elaborate, and would lead to far too many trials within a trial. On the other hand, the criterion of fairness, which no doubt the House and the other place agree is the essential criterion, lies at the very heart of the Government's amendment. It is present in Lord Scarman's amendment, but it is the other factors in his amendment that worry me. The Government's amendment rightly leaves the matter to the discretion of the judge, and the judges are, and will be, fair in this matter.

Why do I say that Lord Scarman's clause is too elaborate and why am I worried that there may be too many trials within trials? Let me take the second point first. Trials within trials are bad for justice if they occur too often. At present, they occur almost exclusively in relation to the admissibility of a confession which is often a central matter and the confession must be excluded if it was obtained in circumstances where its admission is likely to lead to unfairness and a miscarriage of justice. If we have too many trials within a trial, it will confuse the jury—one can say that with confidence—and dilute the court's concentration on key issues in the trial.

Why do I say that Lord Scarman's clause is too elaborate? I think that it is because it seeks to lay down in such detail the very criteria which Labour Members and my hon. and learned Friend the Member for Fylde (Sir E. Gardner) are so enthusiastic about. First, it makes it a separate and distinct matter that the prosecution must prove beyond reasonable doubt that the evidence was lawfully obtained. It then runs through the four criteria —whether there was a breach of the Act or a rule of law; whether the powers conferred by the Act or other rule of law were exceeded; whether there was a breach of ore of the codes of practice under the Act; or whether there was any material deception. Finally, it turns the court's attention to the probative value, the gravity of the offence, the circumstances in which the evidence was obtained, and the public interest.

There thus appear to be nine separate matters which the court will have to go through every time the subject is raised. Anybody with experience of the criminal courts and of sitting as a judge, even in a lowly capacity, in the criminal courts will recognise at once that many of those criteria overlap, whereas the fairness and justice of the situation will be readily visible, providing that it is not over-elaborated, to both counsel and judge, and, indeed, to the accused.

If we pass a clause in such detail, we shall simply encourage people to go through the whole ritual every time, distracting their minds from the key issues and in that way confusing, diluting and weakening the ultimate objective of every hon. Member—a fair and just trial.

There are cases that are so serious that it would be monstrous if evidence obtained in breach of the law or procedure were to be admitted. Many can think of examples. A classic example would be where under the new provisions of the Bill, a police officer, entitled to enter premises of a third party to search for evidence, saw some extraneous evidence relating to a different matter which became crucial in that matter but which might be as trivial as an out-of-date tax disc on a car in a forecourt. If it were to become the practice to bring cases on that basis, the courts would rapidly sit on them. There would be many other more serious but not desperately serious examples where courts would exercise their discretion to exclude evidence. Such decisions can be reached swiftly with the court's mind concentrated on the essential issues if we accept the Government's clause.

The Government's clause leaves the discretion fairly and firmly in the lap of the court. It leaves the question of whether there has been any breach well embraced by the rigmarole if it appears to the court". It enjoins the court to take into account all the circumstances which it is right and proper that it should do, and it has in mind the fairness of the trial as its overriding and proper objective. I support that objective and the comparatives implicity of the clause, and I hope that the House will support it.

Mr. John Morris

The main distinction, stripped down to the essentials, between the proposal of the Home Secretary and that of Lord Scarman in another place is that the Home Secretary would propose that, in the particular circumstances with which we are dealing, evidence would be admissible unless judges chose to exclude it. Lord Scarman has proposed that evidence should be excluded unless judges chose to admit it. That is the basic Rubicon that we are asked to cross or not to cross as the case may be.

It has been prayed in aid—I have read the speech of Lord McCluskey—that Lord Scarman's proposals seem to be working well, or at least reasonably well, in Scotland. Therefore, it is odd that we in England and Wales shut our eyes to what is happening in a kingdom which is part of our country.

The second matter, which has caused concern during this short debate, is how the discretion is to be exercised. The Home Secretary's amendment widens the discretion and both his amendment and that of the hon. and learned Member for Fylde (Sir E. Gardner) go back to the pre-Sang situation.

The Home Secretary made the point that there was a danger in Lord Scarman's proposals that the guilty might be acquitted. He has failed to understand and take into account that, even on his proposals, the guilty might still be acquitted. Therefore, it is a question of judgment and a matter of degree whether more people are likely to be acquitted on Lord Scarman's proposals than on those of the Home Secretary. It is not a question of black and white, and the Home Secretary would have done the House a service if he had put his case in that way.

Another matter raised is the Home Secretary's fear of trials within trials. Until the intervention of the hon. Member for Caithness and Sutherland (Mr. Maclennan), he did not make it clear that there would be trials within trials on both propositions. He came clean when he said that he was afraid of the complexity of trials within trials on Lord Scarman's proposals. That is the whole theme of the Lord Chancellor's observations. He must have had some very unhappy experiences to be so much a critic of such developments.

The hon. and learned Member for Mid-Bedfordshire (Mr. Lyell) said that Lord Scarman's proposals would confuse a jury. He might also have told the House that those matters would be ventilated in the abscence of a jury. Therefore, I find it difficult to follow how they, per se, would confuse a jury.

Mr. Lyell

As the right hon. and learned Gentleman knows, although arguments as to whether evidence should be excluded would be in the absence of a jury, they could still be raised before the jury at a later stage in the trial, and they frequently are after an unsuccessful trial within a trial on a confession. That is the point that I had in mind.

Mr. Morris

As the hon. and learned Gentleman knows, that will happen in any event if the matters are pertinent and defence counsel want to raise them. But, on the issue of admissibility, there would be no danger of confusing the jury which, he made it abundantly clear to the House, was one of his fears. Such matters, whether or not they fell within the ambit of one of the nine separate matters to which he drew attention, would be canvassed in the absence of the jury. Therefore, there would be no question of confusion there.

5 pm

The Home Secretary said that his proposals were simple, clear and flexible. However, they do not give the trial judge any guidance, except the barest limits, on what matters he has to take into account in reaching his decision. Lord Scarman's amendment lists detailed matters that the court would have to consider, but, under the Home Secretary's proposals, a trial judge would have to consider only the circumstances in which the evidence was obtained and whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Does the Home Secretary really believe that those words will be more valuable to a trial judge than would the catalogue of matters suggested by Lord Scarman? Does the Home Secretary really believe that his proposal is simple, clear and flexible? Perhaps he should think again.

Those of us who spend some of our time in the criminal courts could produce anecdotal evidence, but the House should remember that Lord Scarman, before his elevation to the Court of Appeal and to the House of Lords as a Lord of Appeal in Ordinary, was a distinguished trial judge. He did not bring these matters before another place without also bringing to bear his long and distinguished experience of the law at all stages as a practitioner, a trial judge, a judge in the Court of Appeal and as a judge in our supreme court. Therefore, we should listen to his advice.

Mr. Ivan Lawrence (Burton)

The point about the amendments is not whether there will be more trials within trials, because it is impossible for us to guess whether there will be more such trials under Lord Scarman's amendment or under the Government's amendment. The point is whether there will be more exclusion of evidence. It is clear that under Lord Scarman's amendment, which provides that evidence shall be excluded in certain circumstances, there is more likelihood of evidence being excluded than there is under the Government's amendment, which leaves the exclusion of evidence to the discretion of a judge.

Some people believe that we should move helter skelter towards the American system which requires the exclusion of any evidence that is improperly obtained and which, together with a number of strange rules of evidence—Americans themselves think them strange—often results in villains who are known to have been engaged in crime for a long time not being able to be charged and brought to trial. I do not believe that we should move so quickly in that direction, and the Government's amendment would be a far slower move towards the American system. American judges admit that their system is highly unsatisfactory.

Sir Edward Gardner

I am sure that my hon. and learned Friend will explain to the House that there is a great distinction between automatic exclusion of evidence, which is the American way, and exclusion on a discretionary basis, which is provided for both in the Government's amendment and in the Lords amendment.

Mr. Lawrence

I am grateful to my hon. and learned Friend, because he leads me neatly to my next point.

In Lord Scarman's amendment, the decision to be taken by the judge is broken down under a number of headings which I, as a practitioner in the courts, do not like. I do not think that the test whether evidence is probative is a good test of the justice of a matter, because a confession of guilt may be probative, but it may be unjust to admit it. Therefore, a test of probativeness is going too high.

The next test is the gravity of the offence charged. I am not too attracted to the proposition that evidence could be excluded in a careless driving case but would not be excluded in a murder case. That test goes over the top.

The Lords amendment also includes a test that the public interest in the fair administration of the criminal law requires evidence to be given. I have heard it said in the Court of Appeal that it is in the interests of justice, in joining two murder cases together, that the press should not be inconvenienced. That is a dangerous sign of the way in which courts may sometimes be led to consider that matters that may be unjust are admissible for all sorts of extraneous reasons.

I have also heard it said in court more than once that, when considering whether something is in the interests of justice, it must also be considered whether it is in the interests of the prosecution that some evidence should be admitted. That is not necessarily conducive to fairness.

In setting out such headings, the proposals in the Lords amendment are somewhat excessive and may lead to decisions resulting in the inclusion of evidence that ought to be excluded if justice is the issue.

I feel strongly that the Government's proposal is much wiser, because it will leave it to judges to consider in all the circumstances whether justice is more or less likely to be done by the exclusion of evidence. Therefore, we are less likely to reach the American system before our procedures and rules of evidence are suitable for it.

I have one doubt. The courts have more or less traditionally—though less so in recent years—said that, if a matter is for the pure discretion of the judge, the Court of Appeal will not normally interfere. I should not be happy if a trial judge decided that evidence that had been unlawfully obtained should be admitted and the Court of Appeal said "We might not have included that evidence, but we have a more or less general rule that we do not interfere with the discretion of the judge."

There have been a number of recent cases in which the Court of Appeal has interfered with the discretion of a judge, but, as far as I know, it has never done so in a situation that requires something as positive as the exclusion of evidence that has been unlawfully obtained.

I do not know whether my right hon. and learned Friend the Home Secretary can reassure me, but I should be much happier if, on the basis of the Government's amendment, the Court of Appeal were prepared to concede a right of appeal and be prepared to overrule the discretion of a judge if it thought it proper to do so. However, that is in the realm of supposition and probably far from this Chamber's powers. In general, I strongly support my right hon. and learned Friend in correcting what Lord Scarman, with the best will in the world, suggests.

Mr. Eldon Griffiths (Bury St. Edmunds)

As one who soldiered through the Committee, I add my felicitations to those already offered to the hon. Member for Middlesbrough (Mr. Bell). I was never sure in Committee whether he was officially on the Front Bench. Now that he is, the House will welcome him.

I listened with care to the speech of my hon. and learned Friend the Member for Fylde (Sir E. Gardner) and I confess that he carried me a long way towards his conclusion. Unfortunately, I was briefed in an opposite direction, but his speech was so lucid and cogent that I am a little shaken in the conviction that I held when I came into the Chamber today.

Anyone who is not a lawyer is wise to read the report of the original debate in the House of Lords before venturing to speak on Lords amendments here. I read with fascination the report of the debate on the Scarman amendment. Four distinguished peers — the Lord Chancellor, Lord Edmund-Davies, Lord Denning and Lord Scarman—could not agree on what the Scarman amendment meant in law. When four such dignitaries are unable to agree it would be presumptuous of me to say that I understand exactly how the Scarman amendment will affect the law in the courts.

It has been said that Scarman would take us several steps towards the American system. I lived and worked in the United States for a number of years and for a time I had to report on the American courts. If we were to go all the way with the Americans and, solely on a technicality, automatically excluded police evidence, we should put the best interests of justice at risk. As I read the amendment, I do not believe that Lord Scarman intends to exclude all evidence on a technicality.

The issue is whether, as Lord Scarman proposes, there should be a set of statutory criteria by which the courts should be guided or whether, as the Government propose, the courts should be left to use their discretion. The distinction between the two positions is real, although it may not be so widely understood outside the House.

The hon. Member for Middlesbrough said that a common law rule already enables a judge to use his discretion. My advice from the Metropolitan police is that they have taken account of judicial decisions under which a court has, under common law, excluded evidence obtained improperly. For all practical purposes the Metropolitan police have regard for the fact that a court can already exclude evidence at its discretion. They would be loth to prosecute if there was a risk of a case failing because of the court's discretion.

5.15 pm

The Scarman amendment does not say that the court "may" exclude evidence but that it "shall". There is a difference because the judge is left with no discretion, and that cannot be right. The judge should have discretion. The Government amendment reflects the better argument, although I do not think that a great difference of principle is involved.

In practice, the judge is the best person to determine the matters before him, subject to the appeals system. I am not sure that it is necessary, although it may be desirable, for Parliament to set out the criteria by which a judge should be guided. However, I heard the telling remark by my hon. and learned Friend the Member for Fylde about judges being left in the dark by Parliament. I believe that it is better for a judge to have the discretion, more or less unfettered, save for the appeal power.

At present I do not stand high in the Home Secretary's estimation, but I have some practical suggestions for him. The Government, with the Opposition's support, are seeking to improve the criminal justice system — for example, by the tape recording of interviews — by introducing section 77 of the Criminal Justice Act— the pre-trial disclosure — and by implementing the recommendations of Lord Justice Watkins' working party which reviewed measures to reduce trials within trials for the mutual benefit of the prosecution and the defence. The whole House wants such practical improvements to be made, but if the Scarman amendment were carried it would cut across some of the practical steps that the Government are trying to take with all-party support.

If we nail down a series of specific criteria, we could interfere with achieving many useful and practical changes. The issue is between allowing a judge discretionary power to make his own judgment in the light of the circumstances, including the circumstances under which evidence is obtained, and imposing a mandatory rule with specific criteria, as set out in the Scarman amendment. Just on balance, the Government's amendment has it.

Mr. Brittan

The issues between us have been outlined clearly, so I can be brief. There is a considerable gulf in principle, but the practical outcome may not be that great because we have moved together as a result of lengthy deliberations in both Houses. However, there is a difference in principle in relation to the onus of proof, as described by the right hon. and learned Member for Aberavon (Mr. Morris). There is also a distinction between the use of the protective principle, as described by the hon. Member for Caithness and Sutherland (Mr. Maclennan), and the dominant test of the fairness of proceedings. That is a real difference of principle, and it is right that we should underline it. The better principle is that disciplinary matters should be dealt with by disciplinary procedures. The overriding consideration of admissibility of evidence should be its fairness in the context of the trial. That is why I agree with my hon. and learned Friend the Member for Burton (Mr. Lawrence) about progress towards the American tradition, and the lack of desire to move far in that direction.

On the practicalities, the main objection to the Government's proposals is that they lack guidance for the courts. That is not a cogent objection, because the guidance provided by Lord Scarman in his amendment would lead to complexity rather than clarity and would not assist the courts in their considerations. As my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) said, the court must go through nine separate matters that are not always entirely consistent or reasonable, and the learned Law Lord had to deal with that dilemma.

The use of the exclusionary route meant that there had to be an exemption unless grave injustice was to be done to the public in a failure to convict the guilty. To produce the exemptions, criteria are set out in 1(b) and (c). As we have said, it is quite extraordinary that, by implication, evidence should be admitted if the case is sufficiently serious and cogent, even though it has been unfairly and improperly obtained. That is the circle that the Lords amendment seeks to square, but which I believe cannot be squared.

For that reason, I prefer the Government amendment emanating from my noble friend the Lord Chancellor, but developed since his original formulation. To provide the catechism that Lord Scarman did gives a spurious certainty and particularity to what will always be an uncertain test. The provision of a simple requirement based on the fundamental requirement of fairness gives the court a more flexible approach that better meets the case and goes less far in a direction that we would be wise to avoid.

For those reasons, I continue to commend the Government amendment to the House.

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

The House divided: Ayes 259, Noes 154.

Division No. 475]	[5.22 pm
AYES
Adley, Robert	Harris, David
Alexander, Richard	Haselhurst, Alan
Alison, Rt Hon Michael	Havers, Rt Hon Sir Michael
Arnold, Tom	Hawkins, C. (High Peak)
Atkins, Rt Hon Sir H.	Hayes, J.
Atkins, Robert (South Ribble)	Hayhoe, Barney
Baker, Rt Hon K. (Mole Vall'y)	Hayward, Robert
Baldry, Tony	Heathcoat-Amory, David
Banks, Robert (Harrogate)	Henderson, Barry
Bendall, Vivian	Heseltine, Rt Hon Michael
Biffen, Rt Hon John	Hickmet, Richard
Biggs-Davison, Sir John	Hicks, Robert
Body, Richard	Higgins, Rt Hon Terence L.
Boscawen, Hon Robert	Hind, Kenneth
Bowden, A. (Brighton K'to'n)	Hirst, Michael
Bowden, Gerald (Dulwich)	Hogg, Hon Douglas (Gr'th'm)
Braine, Sir Bernard	Holland, Sir Philip (Gedling)
Bright, Graham	Holt, Richard
Brinton, Tim	Hooson, Tom
Brittan, Rt Hon Leon	Howarth, Alan (Stratf'd-on-A)
Browne, John	Howarth, Gerald (Cannock)
Bruinvels, Peter	Howell, Ralph (N Norfolk)
Buchanan-Smith, Rt Hon A.	Hubbard-Miles, Peter
Buck, Sir Antony	Hunt, David (Wirral)
Budgen, Nick	Hunter, Andrew
Burt, Alistair	Jackson, Robert
Butler, Hon Adam	Jenkin, Rt Hon Patrick
Butterfill, John	Jones, Gwilym (Cardiff N)
Carlisle, John (N Luton)	Jones, Robert (W Herts)
Carlisle, Kenneth (Lincoln)	Jopling, Rt Hon Michael
Carlisle, Rt Hon M. (W'ton S)	Kellett-Bowman, Mrs Elaine
Cash, William	Kershaw, Sir Anthony
Chalker, Mrs Lynda	Key, Robert
Channon, Rt Hon Paul	King, Roger (B'ham N'field)
Chapman, Sydney	King, Rt Hon Tom
Chope, Christopher	Knight, Gregory (Derby N)
Clark, Dr Michael (Rochford)	Knowles, Michael
Clark, Sir W. (Croydon S)	Knox, David
Clarke, Rt Hon K.(Rushcliffe)	Lamont, Norman
Colvin, Michael	Lang, Ian
Coombs, Simon	Latham, Michael
Cope, John	Lawler, Geoffrey
Cormack, Patrick	Lawrence, Ivan
Cranborne, Viscount	Lawson, Rt Hon Nigel
Critchley, Julian	Lee, John (Pendle)
Crouch, David	Leigh, Edward (Gainsbor'gh)
Dorrell, Stephen	Lennox-Boyd, Hon Mark
Douglas-Hamilton, Lord J.	Lewis, Sir Kenneth (Stamf'd)
du Cann, Rt Hon Edward	Lightbown, David
Dykes, Hugh	Lilley, Peter
Edwards, Rt Hon N. (P'broke)	Lloyd, Ian (Havant)
Favell, Anthony	Lloyd, Peter, (Fareham)
Fenner, Mrs Peggy	Lord, Michael
Fletcher, Alexander	Lyell, Nicholas
Forsyth, Michael (Stirling)	McCrindle, Robert
Forth, Eric	MacGregor, John
Fowler, Rt Hon Norman	MacKay, Andrew (Berkshire)
Fox, Marcus	MacKay, John (Argyll & Bute)
Franks, Cecil	Maclean, David John
Freeman, Roger	McQuarrie, Albert
Fry, Peter	Madel, David
Gale, Roger	Major, John
Galley, Roy	Malins, Humfrey
Gardiner, George (Reigate)	Malone, Gerald
Garel-Jones, Tristan	Maples, John
Glyn, Dr Alan	Marland, Paul
Goodlad, Alastair	Mates, Michael
Gorst, John	Mather, Carol
Gow, Ian	Maude, Hon Francis
Gower, Sir Raymond	Mawhinney, Dr Brian
Griffiths, E. (B'y St Edm'ds)	Mayhew, Sir Patrick
Griffiths, Peter (Portsm'th N)	Mellor, David
Grist, Ian	Merchant, Piers
Grylls, Michael	Meyer, Sir Anthony
Hamilton, Hon A. (Epsom)	Miller, Hal (B'grove)
Hamilton, Neil (Tatton)	Mills, Iain (Meriden)
Hannam, John	Mills, Sir Peter (West Devon)
Hargreaves, Kenneth	Montgomery, Fergus

Moore, John	Smith, Tim (Beaconsfield)
Morris, M. (N'hampton, S)	Soames, Hon Nicholas
Morrison, Hon P. (Chester)	Speed, Keith
Moynihan, Hon C.	Speller, Tony
Mudd, David	Spencer, Derek
Neale, Gerrard	Spicer, Jim (W Dorset)
Needham, Richard	Spicer, Michael (S Worcs)
Nelson, Anthony	Squire, Robin
Neubert, Michael	Stanbrook, Ivor
Newton, Tony	Steen, Anthony
Nicholls, Patrick	Stern, Michael
Onslow, Cranley	Stevens, Lewis (Nuneaton)
Oppenheim, Phillip	Stewart, Allan (Eastwood)
Oppenheim, Rt Hon Mrs S.	Stewart, Andrew (Sherwood)
Ottaway, Richard	Stewart, Ian (N Hertf'dshire)
Page, Sir John (Harrow W)	Stradling Thomas, J.
Page, Richard (Herts SW)	Sumberg, David
Patten, Christopher (Bath)	Taylor, John (Solihull)
Patten, John (Oxford)	Taylor, Teddy (S'end E)
Pawsey, James	Temple-Morris, Peter
Pollock, Alexander	Thatcher, Rt Hon Mrs M.
Porter, Barry	Thomas, Rt Hon Peter
Powell, William (Corby)	Thompson, Donald (Calder V)
Powley, John	Thorne, Neil (Ilford S)
Prentice, Rt Hon Reg	Thurnham, Peter
Price, Sir David	Townend, John (Bridlington)
Prior, Rt Hon James	Townsend, Cyril D. (B'heath)
Proctor, K. Harvey	Tracey, Richard
Pym, Rt Hon Francis	Twinn, Dr Ian
Raffan, Keith	van Straubenzee, Sir W.
Rathbone, Tim	Viggers, Peter
Rees, Rt Hon Peter (Dover)	Waddington, David
Renton, Tim	Waldegrave, Hon William
Rhodes James, Robert	Walden, George
Rhys Williams, Sir Brandon	Walker, Bill (T'side N)
Ridsdale, Sir Julian	Walker, Rt Hon P. (W'cester)
Rifkind, Malcolm	Waller, Gary
Rippon, Rt Hon Geoffrey	Wardle, C. (Bexhill)
Roberts, Wyn (Conwy)	Warren, Kenneth
Robinson, Mark (N'port W)	Watson, John
Rost, Peter	Wells, Sir John (Maidstone)
Rowe, Andrew	Whitfield, John
Rumbold, Mrs Angela	Whitney, Raymond
Ryder, Richard	Wolfson, Mark
Sackville, Hon Thomas	Wood, Timothy
Scott, Nicholas	Woodcock, Michael
Shaw, Giles (Pudsey)	Yeo, Tim
Shelton, William (Streatham)	Young, Sir George (Acton)
Shepherd, Colin (Hereford)	Younger, Rt Hon George
Shepherd, Richard (Aldridge)
Shersby, Michael	Tellers for the Ayes:
Silvester, Fred	Mr. Tim Sainsbury and Mr. Tony Durant.
Sims, Roger
Skeet, T. H. H.

NOES
Adams, Allen (Paisley N)	Cartwright, John
Anderson, Donald	Clark, Dr David (S Shields)
Archer, Rt Hon Peter	Clarke, Thomas
Ashdown, Paddy	Clwyd, Mrs Ann
Ashton, Joe	Cocks, Rt Hon M. (Bristol S.)
Atkinson, N. (Tottenham)	Cohen, Harry
Bagier, Gordon A. T.	Concannon, Rt Hon J. D.
Barron, Kevin	Conlan, Bernard
Beith, A. J.	Cook, Frank (Stockton North)
Bell, Stuart	Cook, Robin F. (Livingston)
Bennett, A. (Dent'n & Red'sh)	Corbett, Robin
Bidwell, Sydney	Cowans, Harry
Blair, Anthony	Craigen, J. M.
Boyes, Roland	Crowther, Stan
Bray, Dr Jeremy	Cunliffe, Lawrence
Brown, Gordon (D'f'mline E)	Cunningham, Dr John
Brown, N. (N'c'tle-u-Tyne E)	Dalyell, Tam
Bruce, Malcolm	Davies, Rt Hon Denzil (L'lli)
Buchan, Norman	Davies, Ronald (Caerphilly)
Caborn, Richard	Davis, Terry (B'ham, H'ge H'l)
Callaghan, Jim (Heyw'd & M)	Deakins, Eric
Campbell, Ian	Dewar, Donald
Campbell-Savours, Dale	Dormand, Jack
Carter-Jones, Lewis	Douglas, Dick

Dubs, Alfred	Marek, Dr John
Duffy, A. E. P.	Maxton, John
Dunwoody, Hon Mrs G.	Maynard, Miss Joan
Eastham, Ken	Michie, William
Ellis, Raymond	Mikardo, Ian
Evans, John (St. Helens N)	Morris, Rt Hon J. (Aberavon)
Ewing, Harry	Nellist, David
Fatchett, Derek	Oakes, Rt Hon Gordon
Faulds, Andrew	O'Brien, William
Field, Frank (Birkenhead)	O'Neill, Martin
Fields, T. (L'pool Broad Gn)	Orme, Rt Hon Stanley
Fisher, Mark	Owen, Rt Hon Dr David
Flannery, Martin	Park, George
Foot, Rt Hon Michael	Patchett, Terry
Foster, Derek	Pavitt, Laurie
Gardner, Sir Edward (Fylde)	Pendry, Tom
Godman, Dr Norman	Penhaligon, David
Golding, John	Pike, Peter
Gould, Bryan	Powell, Raymond (Ogrnore)
Gourlay, Harry	Prescott, John
Hamilton, W. W. (Central Fife)	Radice, Giles
Hardy, Peter	Randall, Stuart
Harman, Ms Harriet	Redmond, M.
Harrison, Rt Hon Walter	Richardson, Ms Jo
Hart, Rt Hon Dame Judith	Roberts, Ernest (Hackney N)
Hattersley, Rt Hon Roy	Robertson, George
Haynes, Frank	Rogers, Allan
Heffer, Eric S.	Rooker, J. W.
Hogg, N. (C'nauld & Kilsyth)	Rowlands, Ted
Holland, Stuart (Vauxhall)	Sedgemore, Brian
Home Robertson, John	Short, Ms Clare (Ladywood)
Howell, Rt Hon D. (S'heath)	Skinner, Dennis
Hughes, Robert (Aberdeen N)	Smith, C.(lsl'ton S & F'bury)
Hughes, Roy (Newport East)	Soley, Clive
Hughes, Sean (Knowsley S)	Spearing, Nigel
Hughes, Simon (Southwark)	Stott, Roger
Janner, Hon Greville	Straw, Jack
John, Brynmor	Thomas, Dafydd (Merioneth)
Johnston, Russell	Thomas, Dr R. (Carmarthen)
Jones, Barry (Alyn & Deeside)	Thompson, J. (Wansbeck)
Kaufman, Rt Hon Gerald	Thorne, Stan (Preston)
Kilroy-Silk, Robert	Tinn, James
Kinnock, Rt Hon Neil	Torney, Tom
Kirkwood, Archy	Wainwright, R.
Lewis, Terence (Worsley)	Wallace, James
Litherland, Robert	Wardell, Gareth (Gower)
Lloyd, Tony (Stretford)	Wareing, Robert
Lofthouse, Geoffrey	Welsh, Michael
McCartney, Hugh	Williams, Rt Hon A.
McKelvey, William	Winnick, David
Maclennan, Robert
McNamara, Kevin	Tellers for the Noes:
McTaggart, Robert	Mr. James Hamilton and Mr. Allen McKay.
McWilliam, John
Madden, Max

Question accordingly agreed to.

5.30 pm

Amendment proposed, as an amendment in lieu of the Lords amendment: After clause 71, insert the following new clause— Exclusion of unfair evidence '(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.'.—[Mr. Brittan.]

Mr. Deputy Speaker (Mr. Harold Walker)

Does the hon. and learned Member for Fylde (Sir E. Gardner) wish to move his amendment to the new clause?

Sir Edward Gardner

No, Mr. Deputy Speaker.

Amendment agreed to.