CRIMINAL EVIDENCE BILL [H.L.] (Hansard, 31 January 1979)

§ Viscount DILHORNE
My Lords, after the short debate on State aid to political Parties and the short debate advocating shorter speeches, I nevertheless feel it necessary, in moving the Second Reading of this Bill, to explain what it is about. I shall do it with such brevity as I find possible, bearing in mind that I have been subjected to great but not improper pressure from the noble Earl, Lord Longford, who is waiting in the wings to make, obviously, a very short speech, after all that has been said today. I shall not, I am sorry to have to confess, be present to hear it.
My Lords, it may come as a surprise to some of your Lordships to learn that it was only during the lifetime of some of the Members of this House—during the lifetime, for instance, of the noble and perennially young Lord Shinwell, and no doubt at a time when he was a nice little boy—that it became possible for any person accused of a criminal offence to give evidence in his own defence. That was made possible by the Criminal Evidence Act 1898. It would not have been fair to allow an accused person to give evidence if in every case he could be cross-examined as to his past record and character, and so provision was made to protect him from that. If it had not been, it might soon have been deduced that any accused who gave evidence had a good character and any accused who did not had a bad one.
So Section 1(f) of the Act provided that, as a general rule, an accused who gave evidence should not be asked, and, 244 if asked, be required to answer, any question tending to show that he had committed, been convicted of or been charged with any offence other than that for which he was then being tried, or was of bad character. That general rule was subject to three exceptions. The first was that he could be asked questions about previous offences if proof of them was admissible evidence to show his guilt of the offence for which he was being tried. The second was if he had put his character in issue, or if the nature or conduct of his defence was such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution. The third, with which this Bill is concerned, permitted an accused being asked questions as to other offences and as to his bad character if he had given evidence against any other person charged with the same offence.
Your Lordships will note that that exception allows such cross-examination only if both are charged with the same offence; but persons are often tried together when they are not charged with the same offence. They can be tried together if the matters which constitute the individual offences of the several offenders are so related that the interests of justice are best served by their being tried together. So, if tried together but not charged with the same offence, one accused can, as the law now stands, give evidence against the other and, no matter how bad the record of the man who is giving evidence against the other may be, it cannot be brought out.
My Lords, a man with a bad record sometimes seeks to secure his acquittal by giving evidence against a co-defendant, or seeks to show that he played only a minor part in what happened by putting the blame on a co-accused. The accused against whom such evidence is given may well feel a considerable sense of injustice if he is convicted and punished in consequence of the evidence given by such a co-accused and his being unable to bring out that man's true record and character.
The Criminal Law Reform Committee drew attention to this in its 11th Report, published so long ago as 1972, and recommended that the law should be changed; and recently a case came before this House in its judicial capacity which raised the question. I should like shortly 245 to tell your Lordships something about that case. It arose out of an accident on Western Avenue. The driver of a van on the East-bound carriageway had stopped at an intersection to cross into the Westbound carriageway. He saw a car 100 to 150 yards away. The driver of the car said that he was about 150 yards from the intersection when the van turned right, out in front of him. There was a collision, and the car went off the road on to the pavement and killed a woman. Each driver was charged with dangerous driving causing death, but the dangerous driving differed so they were not, this House held, charged with the same offence.
At the trial, the driver of the car sought to blame the driver of the van for the accident; and it was not disputed that he gave evidence against him. At the trial, counsel for the driver of the van was allowed to cross-examine the driver of the car to show that he was an unqualified driver without "L" plates and without a qualified driver with him; that he had been convicted of dangerous driving and of driving uninsured in 1973; and that in 1974 or 1975 he had sought to obtain driving licences by falsely stating that he had passed a driving test. The result of that trial was that the driver of the car was convicted and the driver of the van acquitted. In this House the conviction was quashed as it was held that he should not have been cross-examined as to his record as he and the van driver were not charged with the same offence. If the driver of the van had not been allowed to bring out the car driver's record and had been convicted, he would, I think, have thought it very unfair.
My Lords, what this Bill seeks to do is to secure that in future no accused against whom a co-accused has given evidence should so feel. It does so by altering the words in the Criminal Evidence Act 1898: charged with the same offence to charged in the same proceedings". The Eleventh Report of the Criminal Law Reform Committee proposed many changes in the criminal law, some of them very controversial; but this change recommended by them will not, I hope, prove to be controversial and should, I feel, be made without waiting for any Bill 246 to implement other changes recommended. It is now seven years since their report. I hope that there will not be much more delay because trials are going on in which this question may arise at any time.
My Lords, I should like to commend this to the House as an excellently drafted Bill. I do not think it is going to be easy to amend. I hope not; I hope it will have an easy passage. I say that I think it is an excellently drafted Bill because I do not claim to be the author of it. I should like to express my gratitude to the Government for enabling me to have the assistance of parliamentary counsel in drafting it, and I hope there will be no criticism of the drafting. My Lords, I beg to move that the Bill be now read a second time.

§ Lord LYELL
My Lords, it falls to me to make my own apologies to the noble and learned Viscount for not being in my place when he introduced his very valuable Bill. This was not entirely due to my own fault. There was a slight disturbance, I understand, including pickets, outside in Parliament Square, which delayed my arrival for a minute or two. Certainly, my noble and learned friend Lord Hailsham, who is unable to be here, has asked me to apologise to the House for his not being present to hear the noble and learned Viscount who has just so ably moved the Second Reading of this useful Bill. My noble and learned friend would wish me to say on his behalf that he entirely supports this valuable Bill and that he regards it as a valuable correction in what we have heard to be—in this recent decision which was so ably spelled out by the noble and learned Viscount—a very serious anomaly which has been apparently created by the drafting of the various Acts which are proposed to be amended by this Bill. That is as much as my noble and learned friend wishes me to say. I am pleased to see that we had four noble and learned Lords in the House. I am not an expert in any of these matters. For my part, I believe it to be an admirably short Bill. I have listened to what my noble and learned friend Lord Hailsham had to say and to what the noble and learned 247 Viscount, Lord Dilhorne, has had to say. I believe it is admirable and that we should support it from these Benches.

§ The MINISTER of STATE, HOME OFFICE (Lord Boston of Faversham)
My Lords, it may be convenient to the House if I were to intervene in the debate, I hope only briefly, at this stage. I should like at the outset to say that I am sure that we are all grateful to the noble and learned Viscount, Lord Dilhorne, both for his introduction of this Bill and for the clarity with which he introduced it. I should also like to thank him warmly for what he has said about the drafting help that he has received. This extremely short Bill proposes a useful and, as the noble and learned Viscount has said, entirely uncontroversial change in the law of evidence in criminal cases. The point involved is a minor one but one which in certain cases could make the difference between conviction and acquittal. It may be that it did so in the case to which the noble and learned Viscount referred in his opening speech, and I think it would not be improper for me to remind the House that, in fact, the noble and learned Viscount sat on that very case of Hill and delivered the definitive judgment on that case.
The present law in general protects an accused person who is giving evidence on his own behalf from being questioned about his previous convictions and character. But circumstances are specified in the Criminal Evidence Act 1898, and the equivalent provisions in Scotland and Northern Ireland, in which he forfeits this protection. One of these is where he gives evidence—and I quote from the Act— against any other person charged with the same offence". Cases do, of course, arise where two or more persons are tried in the same proceedings on charges arising out of the same incident or set of circumstances, although they may not necessarily be charged with the same offence in the sense of being jointly charged with committing an offence together. It seems right where a person gives evidence against someone tried with him—which will very likely be given in an attempt to exculpate himself and throw the blame on the other party— 248 that he should be liable to cross-examination about his own character, which may be relevant to the credibility of his own evidence. It also seems right—and I would agree with what was said about this—that this liability should not be limited, as it is at present, to cases where co-accused are charged with offences which are identical in every detail. The Bill would relax this limitation to the extent that common sense indicates, so that in future a defendant would be liable to this sort of cross-examination—about his character and previous convictions—if he gave evidence against anyone else charged—and I quote from the Bill— in the same proceedings". The Bill is thus consistent with the approach that the accused should have an opportunity to impugn the character and record of a witness giving evidence against him, whether or not that witness is himself on trial. This is because it is important to test the credibility of evidence which may lead to a person's conviction.
My Lords, I do not think I need say more than that about the effect of the Bill. The noble and learned Viscount, Lord Dilhorne, has provided, if I may say so, an admirable explanation of the background and the defect in the law with which the Bill seeks to deal, and I need not detain the House by going over the same ground again. Indeed, there has been already a notable measure of agreement both from what the noble and learned Viscount has said and from what the noble Lord, Lord Lyell, has said. But perhaps I should add a word about the relationship between this Bill and the Criminal Law Revision Committee Report on Criminal Evidence and the work of the Royal Commission on Criminal Procedure. The law of evidence in criminal cases was reviewed by the Criminal Law Revision Committee, whose report was published in 1972. The draft Criminal Evidence Bill prepared by the Committee, and included in its report, contained a number of useful and in many cases uncontroversial reforms. But the Committee's recommendations have not been implemented because their principal proposals about, for example, the so called "rights of silence"—whether or not inference should be drawn by the judge or jury either from the accused's failure to give evidence at the trial or to 249 mention at the interrogation stage facts on which he relied in his defence—proved to be highly controversial. These major issues are within the terms of reference of the Royal Commission on Criminal Procedure, and the Government consider that it would be inappropriate to promote any substantial revision of the law of evidence while the Royal Commission is sitting. There is no reason, however, to object to limited amendments, of the kind proposed by this Bill, to deal with particular defects which can be simply remedied and which do not themselves touch on the more fundamental issues surrounding the law of evidence. Indeed, the point with which this Bill is concerned was considered by the Criminal Law Revision Committee; and although the wording of the committee's draft Bill was slightly different from that in this Bill, they both have the same intention.
The Government consider this to be a useful amendment to the law of evidence, and I am pleased to be able to tell the House that it has the Government's support. The noble and learned Viscount will, I am sure, understand that in saying that I cannot give any assurances that we will be able to assist the passage of the Bill, particularly if and when it comes to be considered in another place. But I commend the Bill to your Lordships' House for its approval.

§ Viscount DILHORNE
My Lords, I should like to thank the Government and your Lordships for the way in which this Bill has been received. I listened with interest to what the noble Lord said about the Eleventh Report of the Criminal Law Reform Committee. I suggest this: there may be other completely non-controversial changes which were recommended by that committee and are long awaited; it would be a pity if they were delayed because of other much more controversial proposals they put forward.
I hope that if this Bill secures a speedy passage, other proposals of a non-controversial character may follow upon it. I omitted to mention, in my desire for brevity, that my noble and learned friend Lord Diplock, who sat with me on the case to which the noble Lord, Lord Boston of Faversham, referred, wished me to say that he very strongly supports this Bill but regrets that he has been unable to be here at this late hour.