Police and Criminal Evidence Bill

HL Deb 11 July 1984 vol 454 cc910-48

4.35 p.m.

House again in Committee.

Clause 72 agreed to.

Clause 73 [Confessions]:

Lord Airedale moved Amendment No. 157: Page 66, line 11, leave out paragraph (b) and insert— ("(b) in circumstances existing at the time (including anything said or done) which were likely to render unreliable any confession which might be made by him,").

The noble Lord said: If I may, I shall move this amendment on behalf of the noble Lord, Lord Donaldson, because I have one rather small point to make in relation to it. Both the Bill and the amendment make use of the expression, circumstances …which were likely to render [the confession] unreliable". The word is "likely", not "liable". I should be much happier if the words were: circumstances …which were liable to render the confession unreliable". There is quite a difference between "liable" and "likely". If I leave my car unattended in the village street, I am liable to be run in for obstruction, but it is not very likely. I should be much happier if it were accepted that, even if a confession was liable to have been obtained unfairly, even if that was not likely, then the confession should not be admitted in evidence if it was liable to be unsafe. I beg to move.

Lord Donaldson of Kingsbridge

I am grateful to my noble friend for proposing this amendment on my behalf. I apologise for not having been present. We had discussed it just as I was going away to meet a guest and my arrangements went slightly wrong. He has made an interesting point which was not the main point. This was thought up by my noble friend Lord Hutchinson, who unfortunately is now in hospital, and who thought that the existing subsection was inelegantly phrased and could be put very much better rather more briefly. That is really the object of the amendment. It has no ulterior significance and the noble and learned Lord can deal with it by saying either that, though shorter, it does not mean the same thing, or—as I think—though shorter, it does mean the same thing, and is therefore acceptable.

Lord Hooson

Perhaps I may add a word on this amendment. The present wording of the Bill is objectionable also in the sense that it refers not only to the circumstances, but states, which might be made by him in consequence thereof". That implies that there is a subjective test brought in and that one looks far beyond the circumstances. In our submission that is too wide a definition, and the amendment, as my noble friend has proposed it, is not only shorter and more elegant, but also more acceptable.

The Lord Chancellor

I am very concerned to hear that the noble Lord, Lord Hutchinson, is in hospital. I hope that the noble Lord, Lord Donaldson, will convey to him my wishes that he may soon recover completely. I can see from the Benches opposite that they, too, should like to be associated with that expression.

I have been a little puzzled by this amendment, which to me seems to be—and I think that my belief is now confirmed, following the speeches which have been made in support of it—an alternative draft of paragraph (b) as it appears in the Bill. I am bound to tell the noble Lord, Lord Donaldson, and, I think, the noble Lord, Lord Hooson, that I do not think that the amendment, though shorter (and that is always a merit) is in this case an improvement. Something significant has been lost in-the recension, and that is the explicit requirement that a causal link should exist between the circumstances existing at the time and the confession which might be made by the accused person in consequence. It is, I think, an already established part of the law of confessions—and, goodness knows! I think that it is far too elaborate already—that there should have to be (in order to exclude recension) a causal link between what was said or done as an inducement or a threat and the making of the confession, and that that causal link should be the kind of causal link described in the draft as, likely to render the confession unreliable". The Committee might be interested to know that the subsection now in the Bill follows exactly, or almost exactly, Clause 22(b) of the draft Bill proffered by the Criminal Law Revision Committee in their report on evidence. The only change, I am told, is that the words, any threats or inducement of a sort", are replaced by the words "anything said or done", which is plainer and more far-reaching.

If I may deal with the point made by the noble Lord, Lord Airedale, in introducing the amendment, I do not think the word "liable" would be acceptable in the clause. "Likely" is a reasonable word and means what it says; "liable" has a dual possible meaning. In popular speech it might mean "conceivably possible", which I do not think is good enough. In actual strict legal parlance and, curiously enough, in the example that he gave, it has a legal connotation which means that you are subject to a possible prosecution. I do not think in either event that it would do.

There is nothing of principle in this amendment, except this—and I shall return to this from time to time. The essence of the sequence of amendments—we shall come shortly to some more important ones which we shall discuss at greater length—is to define, when you have a confession or an alleged confession, how far you are going to allow the tribunal of law—that is, the judge—or compel the tribunal of law—that is, the judge—to withdraw the evidence, however compelling, or if thought otherwise compelling, from the tribunal of fact—namely, the jury.

It is my strong conviction that, except in two classes of case on which we shall no doubt be elaborating a little later when we come to discuss the more substantial amendments, the jury is a good judge of what is reliable and what is unreliable and what weight to give to it on the assumption that it is not rejected as unreliable.

I am a jury man and not a judge man for this purpose. I think that one of the advantages of our system of justice, quite apart from the libertarian elements of it, with which we are not concerned at the present stage, is that by trial by jury we do distinguish between the tribunal of law and the tribunal of fact, which enables us to leave the relevant evidence, if it is obtained in a way of which Parliament approves, to the jury to decide whether they believe it or not and how much weight to attach to it. I would stick to that through thick and thin. I do not know that there is any great question of principle between us but I would rather stick to the present draft.

4.43 p.m.

Lord Donaldson of Kingsbridge

I am grateful to the noble and learned Lord. I am unable to understand the difference between the two, to which he objects. I do not think that this is frightfully important but we have a long day of legal argument and it will not hurt to have a few, as it were, literary arguments thrown in here and there.

The noble and learned Lord asked for a link. The link is the same in each paragraph—"likely to render". Why is "likely to render" in the Bill version a more effective link than it is in the amendment? I should like to ask for information.

The Lord Chancellor

Clause 73(2)(b) says: in consequence of anything said or done which was likely". It was to the words "in consequence or that I was referring.

Lord Donaldson of Kingsbridge

Without understanding the point of the noble and learned Lord, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wigoder moved Amendment No. 158: Page 66, line 24, leave out subsection (4).

The noble Lord said: I have been asked by my noble friends to move Amendment No. 158, behind the extremely uninteresting wording of which it may be that there does in fact lurk a point of principle of some importance. As I have understood the law, when last I have had anything to do with it, if a witness called "A" says that "B" has told him that "C" has committed an offence, there are no circumstances in which that can be admissible as evidence against "C". That is only right and proper and sensible and fair unless and until the moment comes when "B" gives evidence and can be cross-examined about his allegation that "C" has taken a part in the commission of the offence.

Subsection (4) seems at any rate at first sight to reverse that desirable and appropriate state of affairs. I say that for this reason. Under subsection (8) of the clause, "confession" perfectly properly is defined as including, any statement wholly or partly adverse to the person who made it".

Then under subsection (4), about which this amendment is concerned, it is said that where, a confession is received in evidence.… it shall be admissible as evidence of any matter with which it deals". As I understand that, the position is therefore that if "B" makes a statement to police officer "A" that he, "B", was to some extent involved in an offence, then of course that is a confession and is admissible. If "B" goes on in his statement to say, "Although I was to some extent concerned in the commission of the offence, "C" was the ringleader; "C" was the person who put me up to it; "C" was the person who persuaded me in one way or another to commit the offence", the whole of the confession is admissible by virtue of subsection (4) and is admissible as to any matter with which it deals—namely, admissible as to the statement by "B" that "C" was primarily responsible for the offence. This means, as I understand it, that "A", a police officer, can give evidence that "B" has told him that "C" committed the offence, and that that is now to be admissible as evidence against "C", and furthermore is to be admissible as evidence against "C" in the very circumstances in which the statement by "B" is likely to be wholly unreliable as being the statement of a person who has much to gain from putting the prime responsiblity upon someone else.

That is the situation as one sees it from looking at subsection (4). I would be grateful if the noble and learned Lord would confirm whether that is the result and, if so, whether it is the intended result of this subsection. I beg to move.

Lord Campbell of Alloway

May I very briefly associate myself with everything that the noble Lord, Lord Wigoder, has said, because he said everything that I had wished to say. I wish to add only this. If one is going to codify, this subsection (4), with respect to whoever drafted it, does not stand up to much scrutiny as a form of codification and leaves the considerable area of doubt in all the practical senses to which the noble Lord has referred. I would suggest that this is a matter which ought to receive further consideration between this and the next stage of the Bill.

The Lord Chancellor

I confess that when I read this amendment I was rather puzzled about its purpose. I was advised, and I am still advised so far as I know, that the only effect of the amendment would be as follows. The amendment proposes to leave out subsection (4) of Clause 73. Subsection (4) of Clause 73 reads—it is only four lines of the Bill—as follows: Where in any proceedings a confession is received in evidence by virtue of this section, it shall he admissible as evidence of any matter with which it deals, including any matter favourable to the person who made it". The only effect of leaving that out, I should have thought—and, I was advised, the only purpose of the amendment—was to ensure that self-serving statements in a confession are not taken as evidence of the truth of the words used. I should have thought that once you admit a statement, the whole of the statement has to be given in evidence, subject to comment by the judge and subject to the view taken on those comments by the jury.

When the noble Lord, Lord Wigoder, spoke, I began to see a little daylight but I am not sure that I understood correctly what he was trying to say. What I thought he was trying to say—and he will correct me if I am wrong—is that there are, of course, confessions made by an accused person in the absence of a codefendant which ought not to be used in evidence against the co-defendant. Of course, a judge in such circumstances would have to warn the jury that the confession was evidence against the particular accused who made it and not evidence against the codefendant, who was not there and could not be expected to answer it. If the noble Lord, Lord Wigoder, was meaning to say that, I do not understand the clause as drafted as altering the existing law at all. The judge would still be under an obligation, having admitted the statement, to warn the accused that the evidence was evidence against one accused and not against his co-defendant. I think that is right.

The actual form in which Clause 73(4) arrives, despite the animadversions on it by my noble friend Lord Campbell of Alloway, is in fact declaratory of the present law and it derives from a recommendation of the Criminal Law Revision Committee. In providing that the confession shall be admissible in evidence on any matter with which it deals, the subsection of course is not saying that all parts of the confession are to have equal weight. Furthermore, nothing in the clause inhibits the judge from pointing out to the jury, where appropriate—and I should have thought it usually would be appropriate—that the self-incriminating parts of a mixed statement are likely to be true whereas the excuses do not perhaps have the same weight. It is also open to a judge, where appropriate, to comment in relation to the excuses offered that the accused has decided not to give evidence. Of course, if he does give evidence he can be cross-examined on his statement as can any other witness.

The idea behind the amendment, if I have the right idea, that a self-serving statement in a confession should not be admissible at all, seems to me to raise practical problems as well as objections of principle. If, for example, in the same sentence the accused admits the offence but says he did not mean to do it, is one to say that only the first part of the sentence is admissible and the second part is not?—because that would be the effect of what seems to lie behind the amendment. I believe that the powers of the judge continue to provide sufficient safeguards against the abuses feared. Subject to the fact that I will ask those advising me to look again at the point that Lord Wigoder raises, I would ask him to withdraw the amendment. I assure him that the point, in the form in which he put it, had not occurred to me before he spoke, and therefore I shall make sure that those advising me take very careful notice of my reply to see whether or not I have made a mistake.

Lord Wigoder

I am grateful to the noble and learned Lord. I was not seeking to contend that self-serving statements should not be admissible. What I was seeking to contend was that self-serving statements should only be admissible as evidence in relation to the maker of the statement, and I am perturbed that the subsection as it stands should contain the words it shall be admissible as evidence of any matter with which it deals". I am perturbed that those words may be taken by the judge to mean, on the face of it, that if "B" says that "C" played a part in committing an offence, that is a matter with which the statement deals and is admissible as evidence to the jury.

I accept entirely the noble and learned Lord's indication that he would be willing to look again at this matter. I believe there may be a real point of some concern which might perhaps be tidied up before the next stage. In those circumstances, I would beg leave to withdraw the amendment at this stage.

The Lord Chancellor

I will repeat that undertaking, because it is possible that I may have misled the Committee myself. If I have, I will write to the noble Lord between now and Report.

Amendment, by leave, withdrawn.

4.55 p.m.

Lord Campbell of Alloway moved Amendment No. 159: Page 67, line 6, at end insert— ("() A confession in the course of interrogation made by any person in detention shall be excluded unless—

1. (a) immediately before such interrogation such person was informed of his right to remain silent,
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2. (b) each question and each answer were recorded as and when asked and given,
3. (c) the opportunity was afforded to correct the form of each question and answer as recorded at the time when such record was made.
4. (d) a certificate of due compliance with such procedural requirements was made at the conclusion of such interrogation; and
5. (e) where it appears possible that such person may be mentally ill or mentally handicapped or there is no clear evidence to the contrary, the nearest available relative of such person or some other person who is responsible for his care or custody or another responsible person who is not a police officer was present throughout such interrogation.

Provided that such exclusion shall not obtain if the substance of the confession is corroborated by extrinsic evidence independent of such interrogation.").

The noble Lord said: Clause 73(2)(b) of this Bill introduces a new test, the reliability test, and this is introduced as a pre-requisite to the admissibility of confessions. But this amendment is concerned with the implementation of that test as regards the uncorroborated confession, made in the course of interrogation by a person in detention, where certain procedural safeguards to ensure a minimum measure of reliability have not been observed and the proposed sanction is exclusion from admissibility.

The provisions of Clause 73, by inspection, are mandatory by reason of the fact that there is no residual exercise of judicial discretion to admit such a confession if the Crown fails to establish reliability in all the circumstances; and already one moves into the grey area where one is neither a jury man nor a judge man; one moves into a new type of middle ground. In that ground the object of this amendment is to affirm that, unless certain safeguards are introduced, these uncorroborated confessions, made in the course of interrogation by a person in detention, are unreliable within the meaning of Clause 73(2)(b) and so fall within the ambit of that mandatory exclusion.

The safeguards proposed are, first of all, that the caution shall have been duly administered in accordance with article 11 of the code of practice and that a certificate of due compliance should be produced to the court; secondly, that a contemporaneous record of question and answer should be made and this must be offered for correction at the time and a certificate to that effect produced; and that special provisions must obtain for those who appear to be mentally ill or mentally handicapped.

Although these are of course, from one point of view, procedural matters, it is not considered appropriate that such rights of the subject (because that is what on any showing they are) which are enforceable by mandatory exclusion should be relegated to any code of practice. If it were a question of compensation for breach, it would not make any difference at all whether it were enshrined in a statute or in a code of practice; but such is not the question.

The purpose of the amendment is not to seek to make good the deficiencies of the fourth draft of the code of practice which it is proposed to issue under Clause 63 of the Bill on the subject of questioning. But if one has regard to the fourth draft of April 1984, which was published before the Bill reached your Lordships' House, it is apparent, on the face of the draft, first, that no consideration whatever is given to the problems of reliability associated with uncorroborated confessions made in the course of interrogation by persons in detention. It is also apparent that no consideration whatever is given to the appropriate procedure for questioning and the recording of the questions and answers. It is also apparent that there is no sanction whatever as to exclusion in the event of the caution procedures under article 11 of the code, which are mandatory.

If one turns to article 12.14 of the code, which is concerned with written statements made after caution and which includes the requirements of Annex D, it is also apparent—this is very much in point in the context of the amendment—that those statements do not bear at all on confessions made in the course of interrogation. Again, there is no sanction for exclusion in the event of breach. If one looks at Annex D, which is brought into play by article 12.14, one sees that in paragraph 5 no provision whatever is made for the very type of provision for which I am seeking to contend in relation to the uncorroborated statement. It is an oversight; hence this amendment. As I have sought to point out, it is further apparent from paragraph 5 of Annex D. which provides the opportunity for contemporaneous correction along the lines proposed in the amendment, that those provisions in the code cannot bite upon an uncorroborated confession made in the course of interrogation. There is no provision in the Bill which can bite, either. It is also apparent that nowhere in the code is any consideration whatever given to safeguards in relation to uncorroborated confessions or, indeed, to any other confession made in the course of interrogation by persons in detention who appear to be mentally ill or mentally handicapped—a most important oversight.

The sanction of exclusion from admissibility, for which this amendment contends, is not invoked to exclude relevant evidence, or to discipline the police, or to ensure procedural uniformity, or to establish breach of mandatory procedures. The reason for its proposed introduction is that if the safeguards proposed by the amendment are not observed, the very circumstances to which reference is made in Clause 73(2)(b) show, or tend to show, that such an uncorroborated confession made by such persons in detention is unreliable. As to this matter, page 13 of a document which I do not know whether any of your Lordships have seen but which is called a briefing guide, as revised in April 1984, and which comes from Room 528 of the Home Office appears to manifest a measure of monumental misconception. In the first place—I quote from page 63: There is the concept that it would be contrary to the interests of justice to exclude relevant evidence solely because it was obtained in breach of rules".

That will not run, because Clause 73(2)(b) in terms enjoins the judge to exclude evidence which may be true, and hence relevant, unless he is satisfied in all the circumstances that it is reliable. There is the misconception—again I quote from page 63—that, it would be a deviation from the main purpose of the original criminal trial to use it as an instrument for disciplining the police". That is wholly wide of the mark. This amendment does not adopt the approach in Scotland, where an accused may not be convicted on his uncorroborated confession. It seeks merely to introduce minimum mandatory safeguards to ensure that the uncorroborated confession in these circumstances is reliable within the meaning of Clause 73.

In conclusion, this amendment serves not only to tighten the measure of safeguard in the interests of the reliability test under Clause 73; it serves also to tighten the measure of safeguard of other important interests. It will contain this ritualistic challenge which has become the commonplace of criminal trials, a matter to which the noble and learned Lord, Lord Denning, referred at Second Reading. It will recognise the reluctance of juries today to convict on an uncorroborated confession which is not recorded at the time and which the accused is not given any opportunity to correct. It will simplify, clarify and codify police procedures in this regard by enjoining a uniform practice where uniformity is desirable but does not exist at present. It will also remove, on a human plane, a source of considerable friction not only in good community police relations but also in court room relations. Last of all, it will avoid a vast waste of time and public expenditure and could result in the better ordering of the due administration of justice in our criminal courts. I beg to move.

5.9 p.m.

Lord Allen of Abbeydale

This noble Lord, Lord Campbell of Alloway, has clearly put the case for the amendment as a whole but, with some considerable trepidation, I should like to say a few words about paragraph (e), relating to the mentally ill and the mentally handicapped. In the course of our deliberations on this Bill we have inevitably heard a good deal about the Confait case. In fact, I suppose that it was originally the reason why we are here at all. Unfortunately, that was not an isolated case. I think, for example, of the Devlin case in Manchester and of the recent case of Foster, about which we had some exchanges at Question Time not very long ago. Foster was a mentally handicapped individual who spent six years in Rampton, having confessed to serious sexual offences of which he has now been totally cleared. Alas, there may be other cases about which we know nothing.

There is a common feature of the cases we do know about, and it is that there has been a confession of the commission of serious crimes which it turned out that the individual did not commit. It is a common characteristic of the mentally handicapped that they tend to try to please the interviewer. It is not altogether surprising that there has sometimes been a readiness to agree with the police officer and tell him what he obviously wants to be told. How skilled the police are in assessing the reaction of the mentally ill and the mentally handicapped, I do not know. In passing, I should like to express the hope that there will he some special training in this regard.

There is a powerful case for putting in the Bill itself some additional safeguard against the acceptance of unreliable confessions in such circumstances. I well know that there has been a good deal of discussion about what should go in the Bill and what should go in the code of practice, and I am certainly not belittling the code of practice. But the fact remains that in the cases to which I have referred the Judges' Rules were not observed and the police officers were not disciplined. For the future, it seems to me that if there were the possibility of exclusion of the confession at the trial, that would act as a much stronger deterrent than the threat of possible disciplinary proceedings. If the police officer realised that the prosecution might lose the case, there is more than a good chance that he would then comply with the law.

As it happens, the code of practice does not refer to confessions as such at all. No doubt, this is because of the existence of Clause 73, but it seems to me that the clause as it stands does not go far enough. We are not talking here about hypothetical possibilities; we are talking about the actual experience of cases which have gone badly wrong. What we are seeking to do, I am sure, is to try to minimise the possibility of such cases recurring in the future. To write into the Bill something along the lines of the amendment would be an important step in the right direction. To my mind this point is so crucial that there ought to be statutory provision on the lines of the amendment now before the Committee.

Lord Denning

I would be against this amendment. Clause 73 introduces an entirely new concept and principle into the law about confessions. In 1917, Lord Sumner, in the case Ibrahim v. Rex declared that a confession, to be admissible, had to be voluntary. If it was involuntary, and if it was excited by the fear of prejudice or by the hope of advantage held out by a person in authority, then it was not admissible in point of low, and the judge had so to rule.

That test, although well established, came under considerable criticism and as a result of the recommendations of the Criminal Law Revision Committee, we have this new test, not of voluntariness, but of reliability. One finds in subsections (1) and (2) that the court has to decide whether there existed at the time of the confession anything to render the confession unreliable. I should like to say that once the judge has ruled upon that, the matter should be left with the jury.

The question then is whether the judge should be tied by the further provisions set out in the proposed amendment. One can see the desirability of the rules laid out in the code of practice as to how the interrogation is to be conducted. But let us supppose that there was some slight failure of one kind or another; ought that to render the confession wholly inadmissible, assuming that it was really reliable?

It seems to me that those provisions are well placed in a code of practice and that the real decision in such a case should be left to the jury, as it is in most of these cases. I hope that the Bill will stand as it is, without this amendment.

Lord Airedale

I should like to question the wisdom of the proviso at the end of the amendment, which appears to state the principle that the admissibility of a confession can depend on whether or not the confession is corroborated. Would this be a new principle if introduced into criminal law? If it would, then we shall need to think about it very carefully indeed.

Lord Renton

I should like to express my gratitude to my noble friend Lord Campbell of Alloway and to the noble Lord, Lord Allen of Abbeydale. Over the past four years there has been increasing anxiety about the treatment of the mentally handicapped when in the hands of the police, often mistakenly. As president of MENCAP I first drew the attention of the former Home Secretary (now my noble friend Lord Whitelaw) to the way in which a man of 30 with a mental age of eight years had been treated and had been led into signing a confession of murder which, with his mental ability, he was incapable of making. He signed the confession, which was clearly false; and it became apparent that the murder had been committed by another man.

I leave aside the fact that the mentally handicapped person concerned had been beaten up (and there seems no doubt about this) while in custody. That was a deplorable feature of the case, but I am not using it in support of this amendment.

I do not know to what extent my noble and learned friend the Lord Chancellor will reply to this debate. He has been told by the Home Office of the history over the past four years of our dealings with the Home Office in order to try to put into the law something which will prevent these tragic miscarriages of justice from occurring. I have letters and copies of letters from Ministers, expressing great sympathy and saying that of course the Home Office will be at pains to ensure that the matter is properly covered in codes of practice.

I turn to the code of practice. The only reference that I can discover in this regard is on page 22.13, under the heading, Persons at risk: arrested juveniles, the mentally ill and the mentally handicapped". Paragraph 13.1 states: An arrested juvenile or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies". Annex C has nothing whatever to do with the case. Really this is not good enough; the Government have got to do better than this, if I may disrespectfully say so.

I should have thought that as we are legislating afresh in this matter and introducing a test of reliability, as the noble and learned Lord, Lord Denning, has pointed out, we might as well try to do the job properly. When I say "properly" I mean in a way which will put it beyond any risk that those people in our society who are at risk—and the mentally handicapped in these circumstances are those who are most at risk—will not be the victims of miscarriages of justice again. With those thoughts in mind—and I make no apology for putting them to you in a rather stark manner—I wonder if we may just consider this amendment.

To my mind, the crucial part of this amendment is in paragraph (e) of the new subsection to be added to Clause 73, which deals with the mentally ill or the mentally handicapped specifically and as a separate class from those who are dealt with in the earlier paragraphs (a) to (d). There it says, as the code of practice says: the nearest available relative … or some other person who is responsible for his care or custody"— shall be present. I suggest that that does not in any way impair the reliability test to which the Government aim in Clause 73; it strengthens it. It does not introduce any new principle which the Home Office find in any way unacceptable; it transfers from the code of practice the one provision which they consider important enough to include in the code of practice to protect the mentally ill and the mentally handicapped. So that provision alone, I would respectfully say, is something which should in any event be added to Clause 3.

Let me just mention the other points and, indeed, the point in the proviso. Although my noble friend Lord Campbell of Alloway has explained those fully—and, indeed, because he has explained them fully—I do not intend to say much about them; they seem to me to be acceptable and not to create anything which would cause confusion in the courts. But if for technical reasons—good legal reasons—my noble and learned friend the Lord Chancellor does not like them or any part of them, then I say the right course would be for the Government to accept in principle that paragraph (e) should become part of Clause 73, and the Government should give an undertaking that it will happen; but I say that very much as what I will call a last-ditch argument. I should hope that the whole spirit, principle and content of the amendment as tabled and moved would appeal to the Government.

Lord Edmund-Davies

I am not myself in favour of supporting paragraphs (a) to (d) of the amendment. I think that the idea that a slight departure from any one of those requirements would be fatal to the admissibility of the confession is opening up a perilous road. But I am enormously attracted by paragraph (e), which has brought to my mind a case in which I was professionally engaged so very many years ago and which I should like, in a few sentences, to adumbrate. It was a murder charge. The accused was a dim-witted person living in a little Welsh village. He was, among other things, the gardener for the man who became renowned later as Dylan Thomas the poet. He was a man with a good reputation for industry who did little jobs. He was dull in comprehension and dim-witted. The charge was that of stabbing in a number of places a perfectly harmless old lady who lived in the village and for whom, again, he did jobs from time to time and with whom, so far as one could tell, he was on the best of terms.

The case came before Mr. Justice Devlin in Carmarthen. He was not happy about the matter and adjourned the case to Cardiff in order to see that the man was defended. In the course of one's duties one had to cross-examine the witness relied upon by the police as establishing what this accused man had said. Against him were alleged remarks which verged at times on the metaphysical, and one had to ask the witness how on earth he had expressed himself: did he do drawings?—he certainly could not have used the words; and, to cut it short, the whole thing evaporated.

How much better off the defence would have been if the recommendation contained in paragraph (e) had been conformed with, and the nearest available relative or another responsible person, not a police officer, was present throughout such interrogation. Somehow, somewhere, such people as that should find a protected place in the Bill; and I hope they will.

Lord Wigoder

If I may adopt the words of the noble and learned Lord, Lord Edmund-Davies, the "perilous road" about which we are troubled is that those who are carrying out an interrogation might be led to believe that a slight departure from these principles will nevertheless not render a confession inadmissible. The "perilous road" is that those carrying out the interrogations will thus be led to further and more frequent departures from these principles. For those reasons we would wish to support this amendment and to support in particular paragraph (e).

5.28 p.m.

The Lord Chancellor

I am at a little difficulty in handling this amendment because I find that on the Order Paper there is quite a sequence of amendments which, although they are not identical in purpose, because some them do not expressly deal with mental handicapped persons, have a broad similarity in object and have various advantages and disadvantages which I think ought to be basically the subject of a single discussion. It may very well be that at the end of them all we shall want to come back on Report to the subject of these confessions rather than decide between a number of rival theories how this matter should be dealt with. They all have some advantages and they all have some disadvantages.

I am bound to say that in its present form Amendment No. 159, now under discussion, is the one which attracts me least, although I take on board, of course, the point which was made by the noble and learned Lord, Lord Edmund-Davies, and by my noble friend Lord Renton, about mental handicap, which is really rather a separate issue, I think, from some of the other points which have been raised.

To begin with, I make one or two general observations which I should like to be borne in mind before we come to a concluded view about any of them. There is a curious ambivalence—almost a love/hate relationship—between the legal profession, and indeed sometimes Parliament, and the jury system. Sometimes we talk about juries as if they were part of the palladium of our liberties and to be trusted at all costs; partly because of the libertarian factor with which we are all familiar and partly because of the splendid impudence of juries in refusing to convict when they think that the accused has been unfairly treated. That view was very well expressed in that lecture on the jury system which Lord Devlin gave some time ago.

In a sense, perverse verdicts are one of the palladiums of our liberties and neither Parliament nor the profession can really prevent juries from acting in that way. So long as they do not act in that way too often I think that, on the whole, it is a very good thing that they sometimes take the bit between their teeth and disregard the voice of authority in favour of a perverse acquittal. But how can one put that in an Act of Parliament?

On the other hand, and viewing the matter from directly the opposite point of view, the legal profession started and constantly reverts—I think in some of these amendments there is a sign of its reversion—to the view that the jury is not to be trusted and that only those facts or that evidence which we think is good for them should be fed to them—the sort of nannying approach to juries which I think, in the end, is destructive of the administration of criminal law. The Americans have gone a very long way down that route. They have gone a very long way in favour of total exclusion of all evidence which has been obtained by any methods which are not only a little bit questionable however convincing of guilt the confession or the evidence may be.

I do hope that we never go down that route. It was condemned by the present Chief Justice of the United States in a very telling passage which was quoted, I think, in the Philips Commission report. As I say, I hope we never go down that route. In this particular amendment there is a little more than a tendency to do so, which would be to the great disadvantage of the administration of justice.

Our present law relating to confessions is not at all that bad. In a case on which I had the honour to sit some time ago called Ping Lin, which was a drugs case, we had occasion to refer yet again to the splendid words of Lord Sumner in the famous case of Ibrahim, which says, in effect, that a confession which is obtained as a result of the offer of advantage or a threat of disadvantage if it was not made, is to be altogether excluded. On the whole, as years have gone on, judges, and I think Parliament, have come to see that if one is to keep the jury system the less one tries to exclude from the jury probative evidence and the less one tries to stop people keeping away from the jury things which could logically influence a sensible man's mind, the better it will be for the administration of justice. We have come a very long way in the past 100 years from that route.

If anyone asks why in that extraordinary breach of promise case between Mrs. Bardell and Mr. Pickwick neither Mrs. Bardell nor Mr. Pickwick gave evidence in front of Mr. Justice Stanley, the answer is a very simple one. It was because Parliament and the profession did not think it was good for juries to hear the evidence of the parties themselves, although they were obviously the only people who knew whether there had been a promise of marriage at all. Indeed, one of the purposes of that immortal discussion was to show the ridiculousness of that kind of approach to jury trials.

When I have said, as I have, that my general philosophy about juries is that so long as we keep the jury system—and I hope we do—the more we trust them, the better, to that I make two vital qualifications. I do not know which is the more important, at any rate, of those that I propose to deal with. The first is that quite obviously the bench—that is, the tribunal of law—has to discipline or police the actual behaviour of the authorities to those in their custody or to those subject to their power; at least to some extent. That renders it absolutely necessary that they should police them in order to prevent oppressive or inhumane conduct, whether or not it results in a confession and, if it does result in a confession, that it puts inhumane conduct in such a category outside the pale of what is permissible that the result is that the confession should be vitiated. I fully go along even with the Americans in that oppressive or inhumane conduct ought to be policed by the judiciary—that is, by the tribunal of law—but I would not go very far down that route beyond the point that I have stated.

The other important qualification that I would give to the rule that juries are to be trusted is that everybody knows there are facts—I am looking at the entire Cross-Benches now—which if any one of us had them in our minds when we were deciding a question of fact we would be so prejudiced emotionally by that knowledge that we could not give the man a fair trial at all; those things which, although logically probative, are so emotionally fraught that they deprive the tribunal of fact of its impartiality ought to be excluded by the tribunal of law. That brings me back to something which I wanted to say, and was beginning to say, on an earlier amendment. We do gain a certain advantage, quite apart from the libertarian issues, from the jury trial in that the tribunal of law can be allowed to know things which it deliberately keeps away from the tribunal of fact. Similar fact evidence may be such an example, but the easiest one to mention in a mixed assembly like this is the case of previous convictions. If we are trying somebody for a particular kind of crime and know that he had behind him 15 convictions for the very same thing, I doubt whether any one of us is sufficiently saintly to give the man a fair trial.

Our solution to that problem, which I think is a very good one, is that the tribunal of law knows it and the tribunal of fact is not allowed to know it. The tribunal of fact can give the man a fair trial because it does not know the emotionally fraught fact of the previous convictions, and the tribunal of law is able to police the system precisely because it is given those facts and sees to it that they are excluded except in cases which are known under the Criminal Evidence Act 1898 when the accused brings the evidence upon himself.

Assuming that that is our general philosophy, where do we go? There must be additional safeguards over and above the two blocking elements to which I have drawn attention so that the jury' comes to a right conclusion. The first, and to my mind by very much the most valuable, of those safeguards must be the summing-up of the judge. It is really for the judge to warn the jury about some of the dangers and pitfalls with which, in the light of the particular evidence in the case, they may be confronted. There is the fact that in a police station the situation may be strange and emotionally fraught for the accused. He may say things which he will wish he had not said and which may not be altogether relied upon. There is the circumstance (to which I shall return, of course) that the accused may be very young. He may be mentally weak, as in the case cited by the noble and learned Lord, Lord Edmund-Davies.

But very much the strongest safeguard, once you have admitted evidence which is open to question both as to its reliability, which is one issue, and as to its weight in the light of other evidence, which is another, is that the judge ought to draw such factors to the jury's attention, giving them a careful analysis and a careful warning. Then, if he has got it wrong, over and above the judge—behind him—there is the Court of Appeal, where, in the cases where judges overlook important parts—and of course we are all human—the conviction, if there is a conviction, can be set aside.

The other safeguard is the discipline of the police themselves. The idea which the Americans, I think, tend to have, that one can use the judiciary, and the rules of good practice and procedure, in order to prevent deviations from the code of good practice and procedure, and that the judiciary can do it alone, is simply untrue. It was said to be untrue by the Phillips Royal Commission in its analysis of the problem. The Royal Commission quoted the Chief Justice of the United States in that sense in the most outspoken criticism of his own law. Chief Justice Warren Burger said: Some of the most recent cases in the Supreme Court reveal, almost plaintively, an unspoken hope that if judges say often and firmly that deterrence"— that is, the deterrence of bad conduct by the police— is the purpose, police will finally notice and be deterred. I suggest the notion was never more than wishful thinking on the part of the courts … We can well ponder whether any community is entitled to call itself an 'organised society' if it can find no way to solve the problem except by suppression of the truth in search of truth". The Phillips Royal Commission broadly came to a conclusion which is in line with the intentions behind the Bill. Here I come back to the noble and learned Lord, Lord Denning. The Royal Commission stated: since reliability is the primary purpose of the code of practice for interviewing suspects, the reliability of confessions obtained in its breach must be open to question; and it would not therefore be right for statement evidence obtained in breach of the code to be accepted uncritically and without comment by the criminal courts. The advocate for any accused who contests the truth of a confession alleged to be made by him will have considerable scope for discrediting the evidence of that confession if it has been obtained when the provisions of the code have not been observed". With great respect, some of the speeches in support of this amendment rather underrate the importance of Clause 64(7) of the Bill. The code itself provides the advocate for the defence, and for that matter the presiding judge, with a very powerful weapon. Subsection (7) states: A failure on the part of any person to observe any provision of a code of practice issued under this Act shall not of itself render him liable to any criminal or civil proceedings but in all criminal and civil proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question". With very great respect to those who have spoken in support of the amendment, I do not think that they have realised the importance of and the weight to be attached to that provision. They seem to think that the sole purpose of the code is to act as a code of discipline for the police and that disciplinary action would result if it were not observed. That is not so.

With great respect, my noble friend Lord Renton was not altogether fair to the code when he said that Annex C had nothing whatever to do with the question of this amendment. I do not think that he was fair. Paragraph 13 of the code deals both with the young and the mentally ill or mentally handicapped. It says: An arrested juvenile or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies". That is the principle. It continues: If, having been informed of the right to legal advice under paragraph 3.6 above, the appropriate adult considers that legal advice should be taken, then the provisions of section 6"— that is, the legal advice section— of this code apply. Juveniles may not be interviewed at school unless this is unavoidable, in which case the head teacher or his nominee must agree and be present. Where the parents or guardians of a person at risk are themselves suspected of involvement … it may be desirable for the appropriate adult to be some other person. All these special groups may be particularly open to suggestion, and it is important to obtain corroboration of any facts admitted wherever possible. Officers are reminded that a juvenile should not be arrested at school unless this is unavoidable. In this case the head teacher or his nominee must be informed". There we are dealing with the juvenile and the mentally handicapped person. Of course, we would all agree with the authors of this amendment that special protection should be acquired for them.

Now we come back to the provisions of the clause which is under discussion. There we have it clearly laid down. Clause 73 states: If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained … by oppression of the person who made it; or … in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above". There I think one has a fairly substantial general provision giving the tribunal of law ultimate control over conditions of that kind.

We come back to some of the provisions of this amendment. In some ways, it is less favourable to the accused than the text which I have read out. The amendment would allow confessions obtained in circumstances which would otherwise be against its provisions to be admitted if there was corroboration. But the Bill as at present drafted might well exclude such confessions, and probably ought to do so in a number of cases. Thus the Bill provides more protection than the amendment in such a case.

I do not like the requirement, either in this amendment or in some others, as to the necessity for corroboration in the strict sense of that word. Obviously this is a very important factor, as I have already indicated, in leaving the judge to decide whether or not to exclude evidence as not having been proved beyond reasonable doubt to have been free from taint. Obviously, too, the absence or presence of corroboration and the strength or reliability of corroboration would influence the judge very strongly in considering the terms in which he should put the case to the jury. But to make corroboration as such the test or part of the test in deciding whether or not to exclude altogether what was otherwise thought to be totally reliable evidence, I should have thought was to reintroduce an artificiality and formality which the modern tendency of our criminal trials is to try to avoid.

At present I should prefer the form of protection which the Bill in its present form provides, rather than the present amendment. But I also accept that the question of the mentally ill or of the vulnerable from the point of view of extreme youth, or for some other reason, raises a separate issue which will require separate consideration.

Perhaps I may now talk a little about the way we are going to handle this debate, because it will go on at any rate until the debate on the amendment in the names of the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Edmund-Davies, has been fully dealt with. My own feeling is that we ought to have these debates one after the other, dealing with particular aspects of this matter. Then, if the amendments are withdrawn I will undertake to report back to the Home Secretary. He will then be able to read the views, not only of those who have spoken to this amendment but of those who have spoken to the others. We can then return to this subject on Report. It is quite clear in my mind that we have not heard the last of it this afternoon. Having made my preliminary observations, I hope the Committee will possibly agree to act in that sense.

Lord Campbell of Alloway

May I thank all noble Lords who have spoken to this amendment. May I thank in particular my noble and learned friend the Lord Chancellor for the tremendous care and trouble to which he has gone, with the depth of his experience, to do justice to the subject of the amendment—although, to be fair, he does not find it, in the main, attractive. That is a matter on which I would wish to pay a particular tribute of gratitude, all the more so because, with the generosity of an open mind, he has extended the invitation that this amendment, with other amendments, may receive further consideration. For what more can one ask? I beg leave to withdraw the amendment and not to continue at this hour to seek to reply to any of the points that have been made.

Lord Renton

Before my noble friend withdraws the amendment. I wonder whether he would join with me in acknowledging the generous offer by my noble and learned friend the Lord Chancellor to treat the position of the mentally handicapped and the mentally ill as a separate issue, and refer that matter to the Home Secretary.

Lord Elwyn-Jones

May I also venture to be associated with what the noble Lord, Lord Renton, has said. What has emerged very clearly in this debate is the anxiety about the treatment of the mentally handicapped. The speech we heard from the noble Lord behind was painful to hear. I suspect that is much in the mind of the noble and learned Lord, but we take that now as assumed.

Amendment, by leave, withdrawn.

5.53 p.m.

Lord Mishcon moved Amendment No. 159A: Page 67, line 6, at end insert— ("() Nothing in this section shall allow an accused person to be convicted of an offence on the evidence of a confession obtained—

1. (a) during a period of detention in which any breach of the provisions of Part 4 or 5 of this Act occurred, whether or not the effect of the breach was to render the confession unreliable, or
2. (b) from a child or a young person in response to questioning by a police officer without the presence of a parent/guardian or other person not a police officer,

unless that evidence is corroborated by other evidence not so obtained.")

The noble Lord said: I wonder whether, in view of what the noble and learned Lord said, it would not be a courtesy from my point of view—one which I readily afford to the noble and learned Lord, Lord Scarman—to provide the opportunity for him to indicate what his mind is in regard to Amendment No. 160. May I just say that in my humble view the three amendments deal with entirely different matters. The first one deals with admissibility; the second one, which I would be now moving if I were not making these remarks, deals with the question of conviction and not admissibility; and the third, the amendment of the noble and learned Lord, Lord Scarman, if I may say so, deals with statements other than confessions. So I should have thought the three issues were very different. However, I shall be very much guided in what I do in regard to the amendment that I have the privilege of moving when the Committee has heard what is the intention of the noble and learned Lord, Lord Scarman. His amendment is one which we on these Benches regard as being very important.

Lord Scarman

It is always a refreshing and stimulating experience to hear the noble and learned Lord the Lord Chancelllor outline a case against an amendment not yet proposed and the arguments for which have not yet been developed! I really feel myself in the position of David Gower, who has lost the toss and found that somebody else has decided that they would bat before his team.

Nevertheless, I think the course proposed by the noble and learned Lord the Lord Chancellor is an excellent one, and I adopt it willingly, because certainly Amendment No. 160, which is the amendment that I shall be developing, is in my judgment a very important amendment indeed. It is an amendment of principle and an amendment at which one hopes that the noble and learned Lord and his right honourable friend the Home Secretary will look very carefully indeed.

Therefore, in answer to the noble Lord, Lord Mishcon, I welcome the course taken and I am prepared now, if it is a convenient moment, to open and develop the arguments on Amendment No. 160.

Lord Mishcon

I think that in the circumstances it would be a proper course for me to take in regard to Amendment No. 159A to say that I, too, on behalf of my noble friends, think that the suggestion of the noble and learned Lord ought to be taken advantage of. Therefore, the sensible thing to do in addition is merely to deal very briefly with my amendment, Amendment No. 159A, and take a certain course. When I say I shall deal with it briefly I really mean it because I think the Committee is much more anxious to hear the noble and learned Lord, Lord Scarman, than listen to me. Nevertheless, I have something separate to say on this amendment, and I am going to do it very briefly.

As I said before, there are these differences between the three amendments. We have been listening to a very interesting debate on the question of the admissibility of a confession. Amendment No. 159A stipulates that in regard to a conviction there should be no such conviction on the evidence of a confession obtained (the amendment says):

1. (a) during a period of detention in which any breach of the provisions of Part 4 or 5 of this Act occurred, whether or not the effect of the breach was to render the confession unreliable, or
2. (b) from a child or a young person in response to questioning by a police officer without the presence of a parent/guardian or other person not a police officer,

unless that evidence is corroborated by other evidence not so obtained.") In regard to corroboration, the Committee will not want to hear me, having already heard the speeches that were made in regard to that matter on the last amendment. The Committee will be well aware of the point behind that. The real argument behind this amendment is to protect the position of an accused where the confession obtained from him has been obtained either irregularly because of a breach of the vital provisions of this Act which are mentioned in the amendment, or, in the case of a young person, without the presence of a parent or guardian. I think that I need say no more about that at this stage.

I am sure that the Committee will understand if I say that my brief outline of this position is in no way an admission that this is not one of the important amendments before the Committee. Essentially, it is, of course, one of the three matters which one hopes the noble and learned Lord the Lord Chancellor will be considering. Before I sit down, perhaps I may say that I think I have heard an intimation that someone who I regard with great respect would like also to address the Committee. I hope therefore that I shall be pardoned if I do not immediately beg leave to withdraw the amendment.

Lord Elwyn-Jones

The concern that I have, which I mention with great respect, is to ask when we can hope to get the fruit of the further thinking of the noble and learned Lord the Lord Chancellor on these important matters. Can we assume that we shall know where we stand—I say this with the utmost respect—by the time we reach the Report stage? At the moment, the intervention of the noble and learned Lord, about which I make no complaint, has left things in an uncertain limbo. I wonder whether the noble and learned Lord can help us.

Lord Hooson

May I join in that request? It appeared to me that we were going to deal with, and no doubt, debate various important matters of principle. If no decision whatever is taken on those principles this evening—I know that the noble and learned Lord has undertaken to look at the matters, in the light of the debate—your Lordships will be left in the position of having no undertaking of any kind that there will be any change in the Bill. No decision will have been taken. There will be no indication whatever of the will of your Lordships. We are therefore left in a kind of limbo, despite what will no doubt be the high quality of debate to come. My noble friends and I have put down an amendment to cover the situation were the amendment of the noble and learned Lord, Lord Scarman, not accepted. In that event, we should want it debated. I hope that the noble and learned Lord the Lord Chancellor will perhaps give a better indication of what the Government intend to do.

The Lord Chancellor

I have the greatest possible sympathy with what has been said. I am in this difficulty. I have been acting very much on my own authority in the last 20 minutes. But, if we had passed the amendment of my noble friend Lord Campbell of Alloway, I do not see how we could have gone on to discuss, with any sense of freedom, any of the succeeding amendments. Obviously, one after the other, they would not have made any sense at all in a consequential series of sections.

I have had to suggest a practical way out of this difficulty, which is that we should all reserve our fire. It may be the case at the end of the day, if what I say is considered totally unsatisfactory and totally unpersuasive, that, when we have all made our speeches on our own amendments—I consider the most important to be that argued by the noble and learned Lord, Lord Scarman—the Committee will want to divide against the Government. I would not dissuade the Committee from doing so. What I really wanted was to allow everyone to have his say. The points made by the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hooson, are perfectly valid. However, to some extent, I have been acting on my own authority in the last 20 minutes.

What I think I must promise to do, in so far as I can achieve it, is this. Obviously, the Home Secretary has the labouring oar. No one knows better than the noble and learned Lord that Lord Chancellors are severely censored and kept away from questions of criminal law and procedure, except when their assistance is considered absolutely indispensable. To some extent, the Home Office does it only when scraping the bottom of the barrel. However, what I think I can undertake to do, so far as it lies within me, is to promise that the Home Secretary, or myself, will write to the authors of these amendments to say what is the Government conclusion. The Report stage is, I think, on 24th July. We shall try to write in good time for that.

I hope that we are not then faced with the same plethora of alternatives from which to choose as we have now. Obviously, even if I wanted to accept any of these amendments, I should be happy with either if t'other dear charmer were away. I shall, however, do my best to see that the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Hooson, my noble friend Lord Campbell of Alloway, noble and learned Lords on the Cross-Benches and of course the noble Lord, Lord Mishcon, who has played such a useful part, are given an indication of the Government's thinking. I was really thinking of the best that we could get out of this afternoons proceedings.

Lord Elwyn-Jones

I should just like to add this point without prolonging matters. We are, I fear, of the view that the matters of principle raised in Amendments Nos. 159 and 160 are quite different. Similarly, there is a difference on Amendment No. 159A. All that I am saying at the moment is that we cannot undertake to blend and blur them together between now and Report stage.

The Lord Chancellor

I can see that there is an important distinction between what one admits as evidence and whether a conviction results. But it is the same territory and it deals with the same problem, though in a different way. I had thought that this afternoon at any rate we could possibly blur the difference to that extent.

Lord Campbell of Alloway

Before my noble and learned friend sits down, may I respectfully ask whether it is right that Amendments Nos. 159 and 160 are really dealing with different subjects, but that Amendments Nos. 160 and 160B are in a sense alternative solutions? Is that not right? Is there not a disparity of treatment between Amendments Nos. 160 and 160B, so that both could not ride together? They are inconsistent remedies for the same problem. But, with the utmost respect, as the noble and learned Lord, Lord Elwyn-Jones has pointed out, Amendment No. 159 is another issue. Whether it is a good one or a bad one is not the point. But it is another issue.

The Lord Chancellor

Yes, my noble friend is always right. I agree that they are alternative ways of dealing with the same kind of problem, but I do not think that if you wrote a Bill with Amendments Nos. 159 and 160 in it people would say it was a very good Bill.

Lord Campbell of Alloway

I agree.

The Lord Chancellor

That is really what I was saying. It was for that reason that I suggested this method of progress. I think, frankly, that Amendment No. 159 is a little too artificial and formalistic. Equally, Amendment No. 160B, although it raises a quite different issue—it raises the issue of Sang—is an alternative way of dealing with it but perhaps a little too informal. At the same time, the points raised in Amendment No. 160 must be discussed at length this afternoon before we come to a conclusion.

Lord Mishcon

In the light of all that has been said, I beg leave to withdraw Amendment No. 159A.

Amendment by leave, withdrawn.

On Question, Whether Clause 73 shall stand part of the Bill?

Lord Mishcon

Again, in the light of what has been said, it is not appropriate, I believe, to have a debate at this stage.

Clause 73 agreed to.

6.9 p.m.

Lord Scarman moved Amendment No. 160: After Clause 73, insert the followiing new clause:

("Unlawfully obtained evidence.

.—(1) If it is represented to the court in any proceedings that any evidence (other than a confession) proposed to be given by the prosecution was or may have been obtained unlawfully, 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; or
932
2. (b) the court is safisfied that anything unlawfully done in obtaining it was of no material significance in all the circumstances of the case and ought properly to be disregarded; or
3. (c) the court is satisfied that the overriding interests of justice require it to be given, notwithstanding that it was obtained unlawfully.

(2) For the purposes of this section, evidence shall be treated as having been obtained unlawfully 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) as a result of any material deception in obtaining any power under this Act or any other enactment.").

The noble and learned Lord said: After all this practice in the nets, I now start to bat on behalf of Amendment No. 160. I appreciate that it covers the same ground as Amendment NO. 160B. I shall, however, devote myself in the next few minutes to Amendment No. 160. Let us be quite frank at the beginning, notwithstanding the interesting preface to this battle that we have had from the Lord Chancellor, telling us about American practise, which actually is not relevant. Let me be absolutely straight about this. Essentially the object of this amendment is to strengthen the deterrent effect of the Bill in dealing with problems of the misuse of police power in the collection of evidence for the purposes of a criminal trial.

The object is particularly important in the field of the power to stop and search, dealt with in Part I of the Bill, and the powers of entry into premises, and search and seizure, dealt with in Part II of the Bill. Your Lordships will remember that it emerged fairly plainly during the Second Reading that much of the enforcement of the various safeguards against a misuse of police power in this Bill is left to the police themselves. One has here, in a very sensitive area—the collection of evidence and the seizure of documents—an opportunity to enable a power other than the police—namely, the courts—to issue a warning against the collection of evidence unlawfully by the police.

I shall come back in a moment or so to whether that object is a suitable matter to leave to the courts; but that is the object of this amendment. How does the amendment set about doing it? The amendment requires the court to exclude evidence obtained unlawfully, unless—and I emphasise that word, "unless"—the court is satisfied either that the unlawful act was of no material significance in the circumstances and can properly be disregarded, or that the interests of justice require the evidence to be given, notwithstanding that it was obtained unlawfully.

The important feature of this amendment is that it imposes no inflexible rule excluding evidence obtained unlawfully. It is in that regard that this amendment is totally different from the American experience, where the rule is inflexible, and has become, as Chief Justice Burger has remarked more than once, an opportunity for the escape of the clever criminal. There will be no such opportunity, no such charter of freedom, given to a criminal by this amendment, because the judge will have a discretion to admit the evidence, notwithstanding that it was obtained unlawfully, if in the interests of justice that is the course that should be taken.

The Philips Commission, to which my noble and learned friend the Lord Chancellor has already referred, in dealing by way of preface with the current amendment, considered the point of principle involved in this amendment; and in that very lucid document your Lordships will find their handling of this point of principle one of the few obscure areas of the report. I have read it several times, and the conclusion which I put very tentatively to the Committee is that the Philips Commission, at the end of the day, did favour a discretionary power, in certain circumstances, for the court to exclude evidence obtained unlawfully. They hemmed it about with conditions, and so forth, but I think it is there; certainly it is possible to rely on the Philips Commission for supporting the proposition that the present state of the law is unsatisfactory.

What is the present state of the law? I will take it very shortly. The law was settled, although I think not without some doubts still persisting, by your Lordships' House, sitting judicially, in the case of the Queen against Sang, decided in 1979. Sang decided a number of questions of principle. First, it repeated and emphasised the essential role of a judge in a criminal trial—the duty to see that the defendant gets a fair trial. Of course, that is a very important matter to keep in mind when one is considering the use by the prosecution of evidence obtained unlawfully.

Secondly, your Lordships' House, sitting judicially in Sang, reviewed the history of the case law dealing with the discretion which an English trial judge undoubtedly has to exclude from the trial, in certain circumstances, evidence which otherwise is admissible. The conclusion reached in Sang was that that discretion certainly exists in one situation; that is, a situation where the evidence, admissible and relevant evidence, sought to be adduced by the prosecution has such a prejudicial effect that the prejudice it might create in the mind of the jury is out of all proportion to its evidential value; that is to say, the value which, as evidence, they ought to give it.

That is a situation in which it is recognised that a trial judge in a criminal case has a discretion to exclude evidence. Two Members of the House, in Sang, took the view that the discretion was limited to that. Three Members of the House, in Sang, took the view that it was wrong to think of the discretion as a limited discretion; it was a general discretion which could be developed in the case law—a general discretion to exclude evidence in the interests of justice. But all five Members of the House recognised that, as the cases had gone, English law had not developed beyond the principle, "Well, if the prejudicial effect is out of all proportion to the evidential value, then the evidence can be excluded".

Those being the conclusions as to the existing state of the law in Sang, the House of course unanimously drew the conclusion that as the law now stands there is no discretion vested in the judge to refuse to allow evidence to be given merely because it had been obtained illegally. The point that the House made was put in this way: the trial judge is concerned with the way in which the evidence is used in his court, not with the way in which the evidence was obtained.

It is by no means certain that that view of the law—which is now the law since it is a matter of decision by this House, and a unanimous decision—has always been the view of great criminal judges as to what is the law. Indeed, it is quite clear from the statements made in a number of cases—and I shall not trouble your Lordships with them—that Lord Goddard was prepared to express a different view; Lord Parker was prepared to express and did express a different view and Lord Widgery was prepared to express and did express a different view. All those three judges—and it is no coincidence that they were all Lord Chief Justices of England—have indicated their view that evidence improperly obtained could be, within the discretion of the judge, excluded if the judge thought that it was in the interests of justice that it should be excluded. All that this amendment is doing is putting the law into the form in which at any rate a number of highly distinguished judges thought that it was before Sang and in which it is permissible, I submit, to think that it ought to be now.

It is interesting that in almost every other jurisdiction—and I exclude America at the moment—there is a provision for such a discretion vested in a criminal court. I think that it is right to say that Australia has such a discretion. Whether the discretion is there or whether it is an accepted proposal of their law reform commission I am not quite sure. However, certainly it is canvassed—and canvassed favourably—and may already be the law. Perhaps what is much more important is that, as I understand it, the law in Scotland recognises the existence of a discretion such as this amendment proposes.

Two things matter in this Bill. First, we must ensure a fair trial for the defendant. Secondly, we must give the Bill teeth. Is there really anything wrong or inconsistent with the judicial function in saying that when evidence has been obtained in a manner contrary to law—for instance, by an unlawful entry into premises and an unlawful seizure of goods in those premises or if, in the terms of the Bill, a police officer has obtained access to excluded material or special procedure material without a warrant—the judge when asked to allow that evidence into a criminal trial should take the view, "No, the interests of justice do not require it in this case and perhaps the administration of the law requires that it should not go in at all"?

This is done in other jurisdictions. Of course it is carried to an inflexible degree in America which, I agree with the noble and learned Lord the Lord Chancellor, nobody would accept in this country. But let us carry it so far that the judges can see that the purity of prosecution is maintained. Indeed, that is what we are talking about—the purity and integrity of the prosecution process. I beg to move.

6.25 p.m.

Lord Mishcon

I am sure that the Committee will as usual be indebted to the noble and learned Lord, Lord Scarman, not only for the amendment that he has moved, but for the magnificently clear and eloquent way in which he has presented it. Having said that, I wonder whether the noble and learned Lord will allow me to review some of the points which he made and I should like to express some anxiety in regard to at least one aspect of the amendment.

As regards the main principle of the amendment, the colourful words that the noble and learned Lord used in his peroration will remain with us for a long time. The main purpose is the purity and integrity of the manner in which evidence is obtained and in which a criminal court will administer justice. The noble and learned Lord has made the point crystal clear: where a statement has been obtained wrongfully—and we are not dealing with a confession—or other evidence is before the court which has been wrongfully obtained, our immediate reaction along with the noble and learned Lord (now that we are dealing with a Bill which is looking at the whole law relating to this, and this is our opportunity to legislate) is that, except in very, very clear cases, that evidence should be excluded.

I then look at the conditions in which that rule, which one would have thought was a very proper rule, is allowed to be breached in our courts. The first is an obvious one and we need not spend any time on it at all: it is where there is a doubt about whether evidence was unlawfully obtained or not and the prosecution proves beyond reasonable doubt that it was lawfully obtained. There is no problem there at all. The second exception is where—if I may use shorthand English—there is, to the satisfaction of the court, not a material breach of the law relating to unlawfully obtaining evidence. On that one again I should have thought we would have no problem at all.

We then get to the third one. If you reach the third one, it means, first, that the prosecution certainly has not been able to show that the evidence was lawfully obtained—quite the contrary; and secondly, you have reached the stage where there has been a material breach or, to use the very words of paragraph (b): The court is satisfied that anything unlawfully done in obtaining it was of … material significance in all the circumstances of the case". So we have reached the stage where it was of "material significance" that there was a breach. Then the learned judge has this discretion. He has to weigh up whether, although there has been a material breach and although the prosecution has not been able to show in any way satisfactory to the court that the evidence was lawfully obtained, the court is allowed the discretion of deciding that the overriding interests of justice require it to be given, notwithstanding that it was unlawfully obtained. I say this with no disrespect, but our history in criminal law has defined various judges. Some of them are known in the profession as prosecutors' judges; others are known in the profession as defence judges. Very often it is a question of the good fortune or otherwise of an accused as to which type of judge he appears before, but I would hope that at the end of the day he would always obtain justice in our courts.

However, if this is the wording of the Bill, one can imagine that many of our judges would take the view in all honesty and integrity that, although there has been a breach of material significance, Parliament has decided that the jury ought to see this evidence because there is not the slightest doubt that, if a jury does see it, it will know that the accused is guilty, and, if a jury does not see it and does not hear about it, it may well decide that the prosecution has not proved its case beyond reasonable doubt. It appears to me that there is this gap in the case which the noble and learned Lord so ably brought before us, and I say that most respectfully. It is a gap about which I am worried, and only the noble and learned Lord, with his learning and experience, can satisfy me that the gap about which I am worried is not one that ought to attract all our concern.

Lord Denning

As I am now a rather senior ex-judge, having heard the noble and learned Lord, Lord Scarman's, very able description of the law, I entirely agree and have nothing to add, except this. As I understood it, the law, as laid down by Lord Goddard in 1955, always was that if evidence was unlawfully obtained it should be admitted, but the judge had a discretion to exclude it in the interests of justice. The new provision which the noble and learned Lord, Lord Scarman, advocates is that, if evidence is unlawfully obtained, it is to be excluded but the judge has a discretion to include it in the interests of justice. In other words, the only difference is the way in which the judge should exercise his discretion when he is dealing with evidence which has been unlawfully obtained.

On the whole, surely it is better if evidence has been unlawfully obtained that the judge has a discretion to include it if the interests of justice so require. That is what paragraph (c) of the noble and learned Lord's amendment says. Therefore, I support the amendment.

Lord Renton

I am afraid that I have come to a different conclusion. The noble and learned Lord's amendment, in common with the two previous amendments, attempts to codify (I think that in this case that is the right word) and alter a part of the law which deals with the discretion of the judges in criminal cases. As the noble and learned Lord, Lord Scarman, knows, I am rather predisposed in favour of codification in certain circumstances. There are arguments for and against it. If the case law is in a state of confusion or has reached conclusions which are no longer acceptable to Parliament, there is a clear case for altering and codifying the case law, even though it dealt with discretions.

However, I must confess that on the matter covered by this amendment—the admission of evidence which happens to have been unlawfully obtained—I think that it is better to leave it to the courts to continue to evolve the law, bearing in mind that in every case it must depend upon the judge's discretion. It so happens that the judges will turn to the case of Regina v. Sang, and I must confess that I do not find the difficulties about that case which the noble and learned Lord expressed. But I find some difficulty about the way in which his amendment will work, although I regard it as a valiant attempt to deal with a very difficult matter, and that we should acknowledge.

However, the operation of the amendment will turn upon the meaning of the word "unlawfully", which is defined in subsection (2). In that subsection there is no mention whatever of, and no way in which one can find out how it would apply to, an agent provocateur, which was the background of the Sang case. So that seems to me to be an uncertainty created by the amendment, and an uncertainty which could cause the courts to have a problem of interpretation. Other questions of interpretation would undoubtedly arise leading to argument and appeals. For example, in paragraph (b) of subsection (2) there is the question whether the evidence was obtained: in excess of any power conferred by or obtained under", statute. That will have to be considered. That would not be an easy matter for the courts to interpret.

Therefore, although generally I lean in favour of codification, I just wonder whether in this matter it might not be better to continue to leave this to the courts to decide in the light of the guidance given to the Judicial Committee of your Lordships' House.

Lord Edmund-Davies

As one of those whose name supports this amendment, I rise formally to say that I support every word which the noble and learned Lord, Lord Scarman, has uttered. There are very important grounds for saying that subsection (1)(c) of the clause should remain in the Bill. As usual, the noble and learned Lord, Lord Denning, has put his finger on the proper approach. It is that under the amendment, on the face of it, if the evidence was unlawfully obtained, it is out. But there is a discretion left to the judge that if he is satisfied that the overriding interests of justice require it to be given, then it is in. That is important because what has hitherto not been said about Sang is that Sang said in a wide field of testimony that there was no discretion in the court to exclude it at all.

The desirability of this amendment lies in the fact that the court is vested with a discretion if the circumstances indicate the need. I regard that as important, not only as inculcating proper behaviour on the forces of law and order, but also as restricting the activities of the lay witness, so that if he acts unlawfully and, in the judgment of the court, by improper means in obtaining evidence, it shall not be admitted unless paragraph (c) applies—that is, the court is satisfied that the overriding interests of justice require it to be given". To add any more than that would be a task of supererogation having regard to the enormous debt under which the noble and learned Lord, Lord Scarman, has placed the whole of this Committee by his masterly exposition of this topic. Therefore, I propose to adopt the formula used when the Appellate Committee of this House sits: I concur with the noble and learned Lord and have nothing to add.

6.40 p.m.

Lord Campbell of Alloway

I, too, am concerned—and I say this with all due respect and with a certain sense of trepidation—lest within the folds of its own complexity there is an area of obscurity. However, my concern is not on precisely the same grounds as those advanced by the noble Lord, Lord Mishcon. I agree—it is common ground—that the present state of the law on entrapment by an agent provocateur is far from satisfactory. It is clear that this is because, apart from the general discretion to exclude evidence if the prejudicial effect outweighs the probative value, there is no power to exclude evidence whether or not it has been obtained by unfair and improper means.

I emphasise for a moment the words "unfair and improper" in contradistinction to the use of the term "unlawful". What is unfair and improper is not necessarily unlawful within the meaning of the proposed subsection (2). It is not clear—at all events to me—whether what is lawful in paragraph (a) to subsection (1) is anything that is other than unlawful as defined by subsection (2). My noble friend Lord Renton touched upon this aspect.

One has to remember—it has not been mentioned yet, but it is a matter of crucial importance—that the noble and learned Lord, Lord Diplock, in Regina v. Sang, said this: What is unfair, what is trickery in the detection and prevention of crime, are questions which are liable to attract highly subjective answers". This taint of subjectivity which infects paragraph (a) cannot reach paragraph (b) or paragraph (c) because of the definition clause as to "unlawfully obtained". But the question still remains whether a definition clause, which may well exclude "unfair and improper means", to which the noble and learned Lord, Lord Diplock, expressly referred, is not far too restrictive. Hence the problem of obscurity, and hence the problem as to whether the amendment in its present form is truly apposite.

Until the decision in Regina v. Sang—a case where the accused was charged with conspiracy to utter a forged dollar bill and where it was said that but for the inducement of an agent provocateur he would not have done it—it was settled law that evidence obtained from an accused by deception or a trick could be excluded by the trial judge as a matter of judicial discretion as part, as I understand it, of the discretionary principle of fairness to the accused. Such was the view of the three Lord Chief Justices of England to whom the noble and learned Lord, Lord Scarman, referred.

Under Scots law the conventional practice today still is that in criminal cases any evidence illegally or irregularly obtained is inadmissable unless the illegality or irregularity associated with its procurement can be excused by the court. However, if by statute—and this is what it comes to—your Lordships wish to reverse the effect of the decision in Sang, then surely the simpler approach along the lines of Amendment No. 160B, which comes later, is to be commended. Why this should be so—and, of course, I mention this with deference and respect—is because, as I see it, this would restore the law as applied over the years by the three Lord Chief Justices, and would extend this power of exclusion beyond the evidence obtained from the accused (which is limited in that way) to any evidence. The advantage of this approach—and I am not sure at this stage whether I am the juryman or the judge—is that it has to resort to the exercise of judicial discretion in an area where only judicial discretion can achieve a fair and balanced result in the circumstances of the case.

It seems to me that the drafting constraints in this amendment as to what is unlawful and what may be unlawful are too tight. It is far better, surely, to leave it to the judges and to trust the judges. The de minimis provisions in subsection (1)(b) and the interests of justice provision in subsection (1)(c), to which the noble Lord, Lord Mishcon, referred in particular, will be subsumed, taken into account, in the balancing process of the exercise of judicial discretion under the simpler concept along the lines of Amendment No. 160B, which would, in effect, restore the position pre-Sang. For those reasons, I oppose this amendment.

Lord Hooson

There is much to be said for the simple approach advocated by the noble Lord, Lord Campbell of Alloway. As one of the co-authors of Amendment No. 160B, may I say to him that we regard that as a fall-back position and entirely support the amendment proposed by the noble and learned Lord, Lord Scarman. Obviously, Amendment No. 160B restores the position to what we always understood the law to have been and as stated by the late Lord Goddard. Nevertheless, from these Benches we support the amendment moved by the noble and learned Lord, Lord Scarman.

May I come immediately to the fear stated by the noble Lord, Lord Mishcon, about paragraph (c), which gives the court a wide discretion. He was obviously concerned about that. We must take a realistic view. If we are going to have the kind of safeguard at which we are aiming in this Bill, if it is going to have teeth, nevertheless there must be a discretion left in the courts. I do not think it is practicable to think that we would get Amendment No. 160 through without the provision of paragraph (c).

I am more disturbed about the second subsection and its paragraphs, and whether they in fact cover breaches of the codes of practice. It does not appear to me that on their present wording they necessarily do so, and perhaps more thought could be given to that matter.

May I say in relation to the general approach taken by the noble and learned Lord the Lord Chancellor earlier in this debate, when he referred to the love/hate relationship that the legal profession—and, indeed, the Houses of Parliament—have with juries, that I think the love relationship ensues because juries have traditionally looked at evidence which a judge decides is suitable for their attention. That surely is the importance of the matter.

The noble and learned Lord the Lord Chancellor was suggesting virtually that the jury could look at any evidence; the fewer the restrictions the better. I am not convinced that that is right. When one has a group of laymen coming to evidence anew and they are faced, for example, with a confession which appears to set out the detail of an offence; if that confession was improperly obtained, how can they put that in the scales, as it were, when judging whether a man should be acquitted or found guilty? It is necessary to have the judge very carefully sifting the evidence that is suitable to go before the jury.

I entirely agree with the approach suggested by the noble and learned Lord, Lord Scarman. If this Bill is to be effective it must have teeth. As a practising barrister I am bound to say that there could be no greater sanction against a police officer who would misuse the powers. Such police officers may be relatively few and we are only concerned with the safeguards because of the possibility of the misuse of these powers. There could be no greater sanction on that officer than the knowledge that, if he obtained evidence improperly, it was likely to be excluded by the court.

Lord Fraser of Tullybelton

I should like briefly to associate myself with my noble and learned friend Lord Scarman in his amendment. I entirely agree with it. It is only with diffidence that I venture into the intricacies of English criminal procedure because I have no practical experience of it. It is a pretty alarming field to the outsider, but I wish seriously to say two things. The first is that I believe the effect of this amendment would be to put the law of England almost on the same basis as the law of Scotland: not quite, but very nearly. I say that not because I think it will appeal to English lawyers that they should, as it were, be forced to adopt Scots law—of course not—but I think I can say with some confidence that the law as applied to Scotland works satisfactorily; it has not thrown up serious troubles and difficulties and I do not think that my English friends need be frightened that the law of England, if amended in this respect, would lead to great difficulties.

My other reason for taking part briefly is that I was one of the parties to the judgment in Sang. I believe that the noble Lord. Lord Campbell of Alloway, referred to Shah—I think he meant Sang.

Lord Campbell of Alloway

I did.

Lord Fraser of Tullybelton

That case went into this matter fairly fully and some of the Scottish authorities were referred to because of earlier cases. The noble and learned Lord, Lord Denning, got it exactly right when he said that the effect of this amendment would be to reverse the onus. At the moment unlawfully or improperly obtained evidence has to be admitted in England unless the judge holds that its evidential value is outweighed by its prejudicial value. The onus is on the accused to show why the improper evidence should not be allowed. The effect of this amendment would be to reverse this and put it the other way round.

That seems to me to be right in principle because, if evidence is improperly obtained or if it is unlawful evidence, it is ridiculous to say "It is unlawful, but we will let it go in. It does not matter: there are no teeth and no sanction behind it". It is suggested, theoretically, that the sanction is that the man convicted on that evidence can raise a civil action of damages against the police afterwards. But one only has to mention that to see how ridiculous it is in real life in most cases.

This seems about right, but as two or three noble Lords have pointed out, some exceptions are necessary. The noble Lord, Lord Mishcon, was anxious about the third exception which appears in paragraph (c)—that, the overriding interests of justice require", the improper evidence to be admitted. Some discretion of that sort must be left to the judges. We must trust to the judges because there are cases, for instance, of urgency when evidence is obtained very improperly. For example, when a murder has been committed, unless the police go quickly to the suspect's house to seize the bloodstained knife or recover bloodstained clothes, the evidence can be lost forever. One cannot stand on ceremony and demand warrants in cases of that sort.

There are other cases, for instance of infiltration by the police into a gang of terrorists or drug smugglers, where the police may have to behave in a way that would ordinarily be thought to be improper but there is probably no other way of getting the evidence. In such a case the judge might be satisfied that the "overriding interests of justice" required the evidence to be admitted.

Lord Mishcon

I wonder whether the noble and learned Lord would help me and I suspect some other members of the Committee. My anxiety was because paragraph (b) is there as well as paragraph (c). It would mean that before one reached paragraph (c) as a judge one would have to be satisfied that (b) did not apply. In the instances that the noble and learned Lord, Lord Fraser of Tullybelton, gave, one imagines that the judge would decide in the circumstances of the cases he mentioned that the breach was of no material significance. But if he has to get to (c) would it not be true that in the case—I ask the noble and learned Lord how he as a judge would decide it—where the sight by a jury of a document unlawfully obtained by means involving a material breach of the provisions of this Bill would mean that it would be most likely that the accused would be convicted, their not seeing it would mean that he might be acquitted? Would the noble and learned Lord in the exercise of his discretion in every such case decide that, however unlawfully obtained it might have been, the document could be admitted?

Lord Fraser of Tullybelton

I do not think that I am competent to answer so general a question as that. But there are cases where a judge would have to decide that it was a very serious offence, the evidence had been unlawfully obtained but it would be a scandal to exclude the evidence and allow a man who, on that evidence, was likely to be convicted to escape.

The terrorist gang infiltration was the example that occurred to me and there was mention of that in Sang. It is possible that my noble and learned friend Lord Scarman may later be able to answer that question better than I can. At the moment I wish merely to give my blessing to the amendment.

Lord Elwyn-Jones

I confess that, although I signed the amendment of the noble and learned Lord, Lord Scarman, some doubts have crept in. I bear in mind the famous warning which I seem to recollect that the father of the noble and learned Lord, gave him: "They do not want to hear your doubts, they want to hear your opinions". But I am troubled by the cumulative effect of paragraphs (a), (b>) and (c). In subsection (2) we see what evidence shall be treated as having been obtained unlawfully. First, there is evidence obtained, in breach of any provision of this Act or of any other enactment or rule of law; or (b) in excess of any power conferred by or obtained under this Act or any other enactment; or (c) as a result of any material deception". Any dirty trick is all right if, at the end of the day, it is thought that, in the overriding interests of justice, the evidence that results from it ought nevertheless to be admitted.

I am troubled by the cumulative process that we are involved in here. First, in paragraph (a), the prosecution proves to the court beyond reasonable doubt that it was obtained lawfully". That was cadit quaestio. Secondly, (b) the court is satisfied that anything unlawfully done in obtaining it was of no material significance in all the circumstances of the case and ought properly to be disregarded". Then we come to a much more serious scene. By implication even if what was done was of material significance in the circumstances of the case, nevertheless the umbrella of the formula of "overriding interests of justice" rescues the situation from the point of view of the prosecution. We are concerned here with, of course, maintaining the powers of the police and of the courts to deal with the challenge of crime. But we are also concerned with deterring misconduct by the police in the course of investigation. Indeed the noble and learned Lord, Lord Scarman, indicated that that is one of the very objects of what we are about.

In all those circumstances, before the noble and learned Lord the Lord Chancellor gives his serious, grave and, of course, wise, consideration to this (lest he be misled by thinking, for what it might have been worth, that I was fully in accord with the amendment which I have signed) I confess that I am now in a state of doubt with regard to its desirability as part of our law.

Baroness Faithfull

As a very ordinary lay person, I wonder whether I may briefly intervene. I presume to speak, having dealt on a practical plane with many of those who have been before the courts as accused persons. I have also had to deal with many of the police, who are my colleagues and have been my colleagues, and have worked in the community. A short time ago, in another debate, the noble Lord, Lord Mishcon, said that I was a very practical person, and I therefore wish to apply practical issues and seek for information from the noble and learned Lord, Lord Scarman, when he comes to reply.

It seems to me that the spirit of this amendment is one with which we would all concur: the spirit that the accused should have every right to justice. My question is this. May I say first of all that there is such a fine line drawn between the rights of the accused, the right of the police to carry out their duties lawfully, and the rights of the community. How are those three rights to be woven in so that justice is done to all three? As I said earlier, I believe that the spirit of this amendment lies in the concept that the accused should receive justice.

I would ask the noble and learned Lord, Lord Scarman, whether he is quite happy that the job of the police is going to be possible and practical to do. I speak because many of my colleagues in the police have been in touch with me and are worried. They are almost ambivalent over this amendment because, on the one hand, they see why it should be so, and, on the other hand, they are not at all sure that they are going to be able to carry out their work as they should. They are worried that it is leading towards an exclusionary rule. The noble and learned Lord, Lord Scarman, said that it would not be in any way in line with the American exclusionary law, but I have to say that many of the police see it in this way. Therefore, when the noble and learned Lord comes to reply, I wonder whether he could explain a little how the police will carry out his very humane amendment.

The Lord Chancellor

Perhaps I should say a few words, although I have already intruded on the Committee for perhaps too long on an earlier occasion. I am glad that the noble and learned Lord, Lord Elwyn-Jones, reminded me of the advice that I received from my father because I, like him, am more afflicted by doubt in this case than I ought to be in replying on behalf of the Government. Being slightly indiscreet, my instructions were to oppose the amendment of the noble and learned Lord, Lord Scarman. Because I realised that it would excite a very great deal of sympathy in the Committee, I had a good deal of doubt whether that was a prudent course: and that doubt is reinforced by what I have heard in the course of the debate. But I still have my own doubts about the amendment and my own comments upon the debate that we have had.

In the first place, my first impression on reading the amendment was that it was too elaborately drafted to be workable in court. In the second place I had a doubt about its practical effect in that it would lead, so I feared, to yet another spate of trials within a trial which have done so much to hold up the course of criminal justice ever since the introduction of criminal legal aid, which in almost all other respects is a thoroughly good thing. Those are two factors which I do not think should be wholly ignored.

Thirdly, I ask myself whether the trigger proposed in the amendment is enough to set off such an elaborate series of rules. Apparently, the trigger is, "If it is represented to the courts". That is the only thing which has to be done. The whole series of rules is triggered by: If it is represented to the court in any proceedings that any evidence (other than a confession) proposed to be given … was or may have been obtained unlawfully". Is it enough to trigger this off that some counsel for the defence says that this may have been obtained unlawfully, and then the prosecution have to prove beyond reasonable doubt that it was obtained lawfully—as in (1)(a) of the amendment—when there is not the smallest evidence in support of the allegation of counsel? I cannot help thinking that that is not a very good thing.

I think we must bear in mind, too, that we are, or can be, dealing not with trivial offences or relatively run-of-the-mill offences, but with offences of the most serious kind: murders, rapes and what used to be felonious woundings under Section 18 of the Offences Against the Person Act 1861: trafficking in heroin, and matters of that kind. Much of the evidence of that sort about drugs is obtained by methods which, if not actually amounting to deception, might at least be accused of being a bluff. If anyone is interested in details, let him look at the details in the case of Ping Lin, on which I had the honour to sit some years ago in a judicial capacity. We must remember that we are dealing with very serious crimes as well as rather trivial or run-of-the-mill crimes, and I am not quite sure that we have the balance right.

I am not at all convinced myself, if there is to be a discretion—and I am coming in a moment to a slightly new line, which has not been raised so far, about Sang—that the burden should be so heavily on the prosecution to establish the factors relating to the admission of evidence of this kind. I am not sure that the court should be biased one way or the other in such a matter. We have got to assume in this case, for the purpose of criticising the amendment, that the defendant is guilty and can be proved guilty only by the use of the evidence which is impugned under the amendment. I am not at all sure that the court should not approach this matter from a fairly impartial standpoint in such a circumstance.

I also want to say this. What struck me when I read Sang again for the purposes of this debate were two things which were said by the noble and learned Lord, Lord Diplock, in his judgment about it. The first was something which I think sheds a light on the subject which has not hitherto been shed, and I think I ought really to bring it to the attention of the Committee. He said this—and I think it was a critical sentence: What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial". He went on in a rather different passage to point out that, although a very large number of dicta in the past could be adduced in favour of the existence of the judicial discretion, contrary, I think, to what was decided in Sang, It is a striking fact that with the single exception of Payne in no single one of these cases where these dicta have been uttered"— that is to say, dicta to the effect that a wide judicial discretion existed— has the court excluded the evidence objected to, given in circumstances which it is difficult not to regard as unfair and unjust whatever standard one applies and in at least one case of flagrant illegality". In other words, although there were these weighty dicta coming from judge after judge, but in circumstances other than the case in which he was deciding there ought to be a discretion, in each case in practice the judge thought it right, despite illegality and despite unfairnesss, to admit the evidence. I regard that as a very striking fact.

Coming back to the first of those two passages, it leads me to illustrate the point by the very case of Payne, which was the only exception to the passage which the noble and learned Lord, Lord Diplock, had found. The case to which the noble and learned Lord referred was Payne. That was the one case in which the court had excluded evidence, and it was a case in which the police asked a driver to undergo a medical examination in order to ascertain whether he was ill, and then adduced the results of the examination as evidence that he had been unfit to drive through drink. In other words, it was the unfair use to which the prosecution put the evidence at the trial, and not the original way in which it had been obtained, which gave rise to the adverse decision of the court.

I do not myself think that that was a coincidence because at the back of my mind throughout this debate I have been trying to feel my way towards a formulation which depended upon something in the nature of an abuse of the criminal process by the prosecution, rather than this elaborate formulation in the amendment before the Committee. I remember, in a case in which I sat judicially some time ago, having rather an argument with the late Lord Dilhorne, who said that there was no discretion of this kind. I was saying, "Yes, there must be a discretion when it is unfair in all the circumstances that the evidence should be used." I feel that that may be a way in which one could approach the subject which is slightly different from that formulated in the amendment.

I should like to make one other point. As the amendment is at present drafted, whether by inadvertence or intention, the illegality or the unfairness in obtaining the evidence need not be on the part of the police. Let us suppose, for instance, that I find a suitcase in the street and I commit what used to be called larceny by finding. I carry it away, intending to keep the contents, whatever they might be. I look inside and find, lo and behold!, that there is the evidence which would secure the conviction in a most important murder case, and so I repent. I take the evidence back to the police. It is my illegality, not that of the police. The police, quite properly, use it as evidence in the trial of the accused and thereby trigger off this process. Ought it to be triggered off in those circumstances? Basically, my answer to that would be, "No", though I quite realise that the noble and learned Lord on the Cross-Benches would be quite entitled to say to me, "Well, the overriding interests of justice would be satisfied in the case such as the present."

I believe that we have got to think about this in the light of the present debate, and as the labouring oar has to be borne by my right honourable friend the Home Secretary, I hope that I may be allowed, without opposing the amendment, to take the whole matter back to him and to ask him to consider it in the light of the very weighty opinions which have been delivered from various quarters of the Committee, not least by the noble and learned Lord, Lord Fraser of Tullybelton, who gives the benefit of his Scottish experience, and to ask him to think again about whether we could not formulate the question of discretion in such a way that it was a more satisfactory instrument of justice—which is what, after all, we all want—than either the uncertainty which existed after Sang, or the actual formulation which has been proposed in this amendment.

I should like to go forward on the lines of the unfairness of the use of the evidence in all the circumstances of the case. I do not want to go into all this detail about illegal methods of obtaining it. I want to go forward more on the use which is made of the evidence in relation to the issues at the trial, rather than the origin of it, when it was first taken. However, I have said what I have to say. I am afraid that I have communicated my doubts rather than my opinion, and I hope that they will be accepted in the spirit in which they are offered.

Lord Wigoder

I did not want to intervene while the noble and learned Lord was speaking, but is it not a really striking fact that all the reported cases are cases in which the unlawful evidence was admitted? Is it not in the nature of the process that the cases where the unlawfully obtained evidence was excluded have, in all probability, resulted in acquittals and have therefore never reached the appeal stage and so have not been reported?

The Lord Chancellor

The noble Lord. Lord Wigoder, is making a perfectly sensible point, if he will allow me to say so; but I think that it is more than that. Among the Law Lords trying Sang were five Law Lords of almost unrivalled experience in criminal trials. I have not been able to find anybody who, in his professional experience, can remember one case in which the exclusion took place on the basis of the discretion. In my own professional experience, I can remember one case, before the war, at Ely Quarter Sessions, but that is far too rabelaisian to tell to the Committee assembled a a whole.

Lord Scarman

This has been an extremely good debate and some very weighty and interesting points have been made. I shall deal with a few of them, but of course in view of the indication which the noble and learned Lord the Lord Chancellor gave on an earlier amendment, I have confined my argument before the Committee to the point of principle. I sense that the Committee, notwithstanding some doubts or misgivings, has very great sympathy—I will put it no higher than that—with the point of principle to be found in this amendment.

I shall deal briefly with some of the points. If I do not deal with them all, I make an apology now. First, there is the question of law. Of course, the noble and learned Lord, Lord Diplock, made the point that the noble and learned Lord the Lord Chancellor mentioned when he was addressing the Committee. But I think I have here the words of the noble and learned Lord, Lord Diplock, and those of your Lordships who are perhaps not familiar with this matter will see the strength of the statements that there are in our law, whatever the result of the cases in which these statements were made. The noble and learned Lord said: Nevertheless, it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been obtained unfairly or by trickery or oppressively, although except with Regina v. Payne there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion". I would remind the Committee of the comment of the noble Lord, Lord Wigoder, on that, which is perhaps not as surprising as at first sight it might seem.

Of course, the difference between the law as it now stands and the law as it would be if this amendment were to be passed is, as the noble and learned Lord, Lord Fraser of Tullybelton, said, a reversal of the onus of proof, and of course a very salutary one. Since I am dealing with points at this moment made by the noble and learned Lord the Lord Chancellor, let me say this as to the "trigger" as he called it. He wondered whether that was a suitable trigger and whether it might not cause some difficulties. The trigger is: If it is represented to the court in any proceedings that any evidence proposed to be given … was or may have been obtained unlawfully". That trigger is taken from the Government draftsmen, who drafted for the Government Clause 73 dealing with confessions. What is sauce for the goose is sauce for the gander. I can see the point that one might put in, "if it appeared to the court".

That is a drafting matter and I hope I have already made it clear to the Committee that on points of drafting I certainly have an open mind, save really on one point only. It was a point first taken by the noble Lord, Lord Campbell of Alloway, and then developed by some others. I put it in this way in the form of a rhetorical question. Why "unlawfully"? Why not use the much more colourful language of the three Lord Chief Justices to whom reference has been made—"improper", "unfair", "by trick"? The reason is this, as was pointed out in the judgment in Sang by my noble and learned friend Lord Fraser of Tullybelton: those phrases, admirable though they are in a judgment, are very subjective in character and give very little guidance to the courts or to policemen, for whom the noble Baroness felt some sympathy.

One needs a more precise and more objective criterion. I take the point that one could draft better the definition of "unlawfully" that is to be found in subsection (2), but the concept of "unlawfully" is a good one and it prevents any moral views of the judge obtruding themselves. If it is unlawful then he has the duty to exclude, "unless".

That takes me to some of the points that were made on the exceptions: "unless—(a), (b) and (c)". Exception (a) need not detain us: that is the burden of proof on the prosecution. With regard to (b), I think the noble Lord, Lord Mishcon, and others misunderstood it, because of course (b) is quite different from (c). There is the disjunctive pronoun between them and they deal with entirely different subject matters. Exception (b) deals with the minor irregularity of no material significance: the policemen who has failed to do one of the many things that policemen have to do, for instance, under this Bill. It is of no material importance; it is a mere irregularity. A judge can sweep that aside and say, "If that is the only unlawfulness alleged, I am letting this evidence in".

Exception (c) of course is absolutely vital and, again, as noble Lords have said, we must trust the judges. But there is a guideline for judges here. The judge has got to be satisfied that the interests of justice are sufficiently weighty as to qualify for the description "overriding" and so there is guidance there for the judges.

Noble Lords will understand that I reject entirely the view that English judges in criminal cases—and whether a criminal case is petty or serious, it is always serious for someone—are prosecution minded or defendant minded. They may take a view about evidence in one case that is different in another, but they approach their task as they are trained to do—that is indeed the whole ethos of their profession—with a sense of complete detachment, knowing that their duty as, in the words of the noble and learned Lord the Lord Chancellor, the tribunal of law, their first and last duty, is to ensure that a defendant has a fair trial. So I think there is nothing on that point at all.

May I say a word or two about the very important points—

Lord Mishcon

Before the noble and learned Lord leaves that point, I wonder whether he would mind my intervening for just one moment. These are, of course, alternatives and is it not practical to assume that (b) would have to be disposed of before the learned judge had to deal with the weighty matter of (c)? Therefore if it was a mere immaterial matter of breach, then quite obviously (c) would not be got to at all; the judge would not have to deal with it. Therefore, when he deals with (c) is it not right to assume from a practical point of view that there has been a material breach?

Lord Scarman

I will say no more than that I think, with respect, the noble Lord has completely misunderstood me—or I have him—one or the other. If the noble Lord is right then obviously we would take a look at it. But, as I understand it, there is nothing in (b) which in the slightest degree interferes with (c); and (b) is valuable as a guideline to the judge as to the sort of irregularity he can just brush on one side. But I will say no more about it except that the noble Lord and I obviously differ in the impression that (b) makes on our minds; and so it must remain for the time being.

I would respectfully agree with some of the points made by the noble and learned Lord, Lord Campbell of Alloway, as to the drafting of the definition of "unlawful". I think that will have to he looked at again, but I would not wish to introduce into it any criterion other than illegality. I think this is something which is objective and which would act as an anchor for judges having to administer this particular discretion.

I was coming to points made by the noble Baroness, Lady Faithfull; but before I do there is one point I should pick up from what the noble and learned Lord the Lord Chancellor said. He made the point that this embraces illegality not only of policemen procuring evidence but of others. It certainly does, most certainly. This is not just aimed at policemen. It is aimed at all who seek to procure by illegal means evidence to be given in a criminal trial.

Coming to the noble Baroness's points, she stressed, rightly, that in the exercise of the discretion the court will have to weigh the interests of the prosecution, the community and the accused. Within a forensic context, that is exactly what judges have to do very frequently indeed and it may safely be left to the judges. The noble Baroness clearly had some rather disappointing conversations with policemen. I hesitate to say—but I will now say—that I have had some conversations with policemen, from chief constables down to ordinary police constables. I discovered no fear at all of this. Indeed, one or two chief constables at a senior police officers' conference which I attended indicated that on balance they thought there was value in it. However, they quite properly reserved a detached position, leaving it to Parliament to make up its mind.

I have been through most of the points which have been raised in a very interesting debate. Upon the understanding that the noble and learned Lord the Lord Chancellor and his colleagues will look at this matter, I beg leave to withdraw the amendment. However, I must give a fair warning that unless something happens to make it unnecessary I intend to return to the matter on Report.

Amendment, by leave, withdrawn.

Baroness Trumpington

Before I put the Motion that the House do now resume, it may be for the convenience of your Lordships if I announce that further consideration in Committee of the Police and Criminal Evidence Bill will not be taken until 8.15.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.