Police and Criminal Evidence Bill

HL Deb 31 July 1984 vol 455 cc653-709

3.3 p.m.

Further considered on Report.

Lord Scarman

moved Amendment No. 131: [Printed earlier: col. 427.] The noble and learned Lord said: My Lords, this amendment proposes the insertion of a new clause into the Bill. It is in effect a redraft of the clause which I moved during the Committee stage. It has been redrafted to meet points that were developed by noble Lords during the course of our debate.

At the Committee stage I introduced the clause in a somewhat lengthy speech and went over the matters of principle which lie behind it. I do not intend again to weary your Lordships with those matters, though they are important and basic to the value and importance of the new clause, as they were to the clause which I then withdrew on the understanding given to us by the noble and learned Lord the Lord Chancellor that he would look at the position, an understanding which my noble and learned friend the Lord Chancellor has indeed honoured by putting down a clause which may have to be considered at a later stage this evening. I shall leave the points of principle with a statement of what they were and will forbear to go into argument supporting them.

Two principles lie behind this amendment. The first principle is that the new clause, if passed into law, will greatly strengthen the power of the Bill to safeguard citizens against the misuse of police power in the collection of evidence for purposes of criminal proceedings. The second equally important principle animating the new clause is that it is intended to ensure for the citizen a fair trial when he faces a criminal charge. This new clause is directly concerned with the fair administration of the criminal law.

It happens that the clause follows very much the lines of a proposal made by the Australian Law Reform Commission for the introduction into Australian criminal law of an exclusion rule. Lawyers mean by the phrase "exclusion rule" a rule which excludes evidence from being used in a criminal trial if that evidence has been unlawfully or improperly obtained. In the United States of America there is what is known as an "automatic exclusionary rule". That is to say, it is quite inflexible. If evidence has been unlawfully or improperly obtained, the evidence may not be used in a criminal trial.

Of course, a rule so inflexible is bound to result in some cases in guilty men going free. Grave charges on which there is abundant evidence will fail because of some technical irregularity by the police in the obtaining of the evidence. That is a rule which nobody in his senses would propose for the United Kingdom and this amendment does not propose any such rule.

This amendment proposes again what is known by lawyers as a discretionary exclusion rule. That is to say, it is left to the discretion of the judge to determine whether the fair administration of the criminal law requires the evidence to be given. Such a rule can be put in one of two ways. It can be put in the Australian way, which is the way adopted by the clause which we are now considering. In that way, again it is called, in the jargon of lawyers, the "reverse onus exclusionary rule". Those hideous words mean only this: that the judge, faced with evidence improperly or unlawfully obtained, is bound to exclude it unless in certain circumstances, which are specified in the clause to which I shall come later, he feels it right in the interests of the fair administration of the criminal law that the evidence should be admitted.

The value of a discretionary rule is clear; it does not prevent the judge from doing justice. The value of a clause drafted as this is—the so-called reverse onus exclusionary rule—is that the judge has a lead in. He knows that if the evidence has been illegally obtained, he is to exclude it, unless he can be satisfied that justice requires that it should be admitted.

I observe that in its report the Philips Commission came out against the American-style automatic exclusionary rule. It is, if I may say so, somewhat confused as to the recommendations the commission makes, but one thing is quite clear: the Philips Commission has not ruled out a discretionary exclusion rule. In the course of the very interesting discussion upon what is a somewhat difficult and intractable subject, the commission described the Australian rule, which, as I have indicated, is really similar to the rules which I am proposing to your Lordships, as based upon the protective principle. That is a very valuable phrase and I shall, if I may. quote from the Philips Commission on what is the protective principle. I shall suggest to your Lordships that as soon as one sees what is the principle, it cannot be gainsaid that we must have this principle active in our jurisprudence.

Having discussed the proposal of the Australian Law Reform Commission, the Philips Commission says that the effect of their proposal, and the effect of the clause which I am now putting before your Lordships, is that: There should be automatic exclusion of any illegally obtained evidence unless the prosecution can satisfy the court that it should be admitted in the public interest, on the grounds of, for example, the triviality of the breach, the demands of the circumstances of the investigation, or the seriousness of the offence being tried". Then when the Philips Commission comes to define or formulate the protective principle, it says—and I think these are very important words—that the rationale of the protective principle is as follows: Where certain standards are set for the conduct of criminal investigations, citizens can expect, indeed they have a right, to be treated in accordance with those standards. If they are not so treated then they should not be put at risk, nor should the investigator gain an advantage. The courts have the responsibility for protecting the citizen's rights". Those are a direct echo of the words of the Chief Justice of the United States of America when discussing the pros and cons of the American rule—that is, the automatic rule—which, however, is not of course this proposal.

Then the Philips Commission, still describing the principle, goes on to say, in regard to protecting the citizen's rights, that according to the principle, The most appropriate way to do so in these circumstances is to remove from the investigator his source of advantage and from the accused the cause of his risk, that is, to exclude the evidence".

The quality of the clause that I am proposing to your Lordships must depend upon the quality of the guidelines which the clause gives to the judge in the exercise of this vitally important function. Of course. it always has been our law that the judge in a criminal trial has as his first and foremost duty to ensure a fair trial. This clause develops that theme in the context of the Bill.

The changes that have been made from the clause proposed at the Committee stage are as follows; and I think I should spend just a little time telling your Lordships what they are. The new clause begins: If it appears to the court in any proceedings that any evidence … proposed to be given by the prosecution may have been obtained improperly, the court shall not allow the evidence to be given unless"— That is the reverse onus format.

In the clause which I proposed at the Committee stage I had followed the style of the Bill in dealing with confessions, in what was then Clause 73, and said: If it is represented to the court". Noble Lords, including the noble and learned Lord the Lord Chancellor himself, pointed out that that would enable trivial, irresponsible points to be put up to the court and as soon as counsel had risen and made a representation to the court, then the judge would have to give consideration to the matter. That is an abuse unfortunately not entirely unknown in our and indeed other people's criminal courts, and it should be avoided if possible. The clause now assists the judge to prevent any time being wasted on frivolous points, because it must appear to the court that the evidence may have been obtained improperly before the court has to act under the clause.

The second important difference—and this is a very important difference—between the clause I am now proposing and the clause which your Lordships saw in Committee is that instead of the clause being concerned as it was, with evidence obtained illegally, it is now concerned with evidence obtained improperly. That has come about in response to a number of points made by various noble Lords and it is, of course, wise that one should not he too confined by a phrase such as "obtained unlawfully". On the other hand, one must be very careful that by introducing an imprecise description, such as the adverb "improperly". one does not lose precision in the law.

Therefore, it is extremely important to look at subsection (2) of the clause, which defines "improperly". I can take it very briefly. The substantial addition to what was in the clause as seen at the Committee stage is as follows. There has now been added to the meaning of evidence to be excluded evidence obtained not only in breach of the law, but in breach of any provision of a code of practice issued, approved and enforced under Part VI of this Bill. That enables the courts to have some deterrent effect upon police breaches of their own codes of practice; codes of practice which under this Bill will have to be approved by both Houses of Parliament before they become effective.

Concern has been expressed by many that if there is one weakness overall in this Bill it is that all the safeguards upon the exercise of their powers by the police are left to the police. Here is an opportunity to give the Bill some teeth and to make sure that the codes of practice have the importance which one would have thought they ought to have, since they will be brought into force under the provisions of our statute law and will not be brought into force until they have the approval of both Houses of Parliament.

The final important change is in the overall guidelines given to the courts as to how this discretion is to be exercised. At Committee stage the clause spoke of the judge allowing the evidence if it was in the overriding interests of justice, but that was an imprecise phrase. It gave rise to legitimate misunderstanding in the course of debate, and therefore it has been changed. I will read the proposed guidelines, because I look around the House and challenge any noble Lord to say that there is anything wrong about them. Indeed, I go on to assert that they will be a valuable addition to our criminal law; that is to say, evidence obtained improperly is not to be allowed by the judge to be given unless—and I go straight to subsection (1)(c), the court is satisfied that the probative value of the evidence, the gravity of the offence charged, and the circumstances in which the evidence was obtained are such that the public interest in the fair administration of the criminal law requires the evidence to be given, notwithstanding that it was obtained improperly". The objection to this clause that I have heard most is that in effect it confers upon our criminal courts a duty which they do not want and which is inappropriate: a disciplinary function in connection with the police. It would of course impose upon our courts a deterrent power but no disciplinary powers strictly so conceived. That deterrent power must arise if effect is to be given in our law to the protective principle. The protective principle is the principle which protects citizens' rights. That has always been, since time immemorial, the first and most important function of the English judge.

So much for all that I wish to say in direct support of the amendment at this stage. I will not conclude, however, without expressing, if your Lordships will allow me to do so, my grateful appreciation to the noble and learned Lord the Lord Chancellor for having responded to our debate at Committee stage by producing a clause covering the same ground as the clause which I am now placing before your Lordships' House. This is not the time to discuss the merits or demerits of the noble and learned Lord's clause; a time may come when we have to do that. Suffice it to say that although I greatly appreciate this initiative by the noble and learned Lord, and although I can see that it would be better than nothing, I remain convinced—I hope not with too much arrogance about me—that the clause which I now propose is a better, more helpful and more effectual solution. I beg to move.

The Lord Chancellor

My Lords, the Question is, That Amendment No. 131 be agreed to? Somebody must want to speak; otherwise, I shall have to put the Question!

Lord Elwyn-Jones

My Lords, under unexpected pressure I rise to support the amendment that has been moved by the noble and learned Lord, Lord Scarman. Perhaps I may make a personal interposition. If the noble and learned Lord will be kind enough when he next addresses the House to stand a little away from the microphone, then his valuable words will be more easily understood by the aged like myself, whose hearing is not as good as it used to be. I give that purely as a friendly piece of advice.

This amendment deals with the difficult problem that faces a judge when the prosecution seeks to put in improperly obtained evidence. As the noble and learned Lord has said, in some jurisdictions it is absolutely excluded, and I believe is called the fruits of the poison tree, or some equally vivid expression. The difficulty about absolute exclusion is that there may be a possibly minor breach of the rules but a positively major discovery from the point of view of the enforcement of the criminal law. For instance, one could think of a case involving the discovery of a store of explosives or firearms during a technically unlawful search. On the other hand, one could equally easily think of a case involving a malicious and destructive search without warrant, or on one obtained by fraud, of premises occupied by someone who may have given reason for being pursued by the police, but which search finally yields only a few milligrammes of cannabis.

In the latter case one would expect, in the application of the guidance proposed by the noble and learned Lord, Lord Scarman, that the judge would not allow that improperly obtained evidence to go in. But in the former case, where the discovery of a hoard of explosives became available and where the exposure and punishment of that offence was of crucial public importance, it would probably be the case that the judge would permit the evidence.

The language that has been used in this draft, if I may say so, meets the interests of justice. It puts the onus upon the prosecution to prove beyond reasonable doubt, initially, that the evidence was obtained lawfully and in accordance with a code of practice under Part VI of the Bill. But one of the many values of this amendment as I see it is that it brings in the code of practice as a rule of court that is given statutory force by its inclusion in the clause as it stands, which we consider to be of considerable importance.

The noble and learned Lord has emphasised the factors which the judge should consider before admitting and allowing the evidence; those he has read out from subsection (1)(c) of the Bill. In my view they are a sufficient, sure guidance to the judge to ensure that the interests of accused persons are properly protected and to ensure that at the end of the day justice is done. In my view, this will be a valuable addition to our criminal law.

3.30 p.m.

Lord Denning

My Lords, at Committee stage I supported the amendment then proposed by my noble and learned friend Lord Scarman. On further reflection and consideration of it as amended, I am now against the amendment. I have had the advantage of a discussion with the Chief Justice of the United States, Mr. Warren Burger, last Friday, at mid-day. lunch time. By Saturday he had obtained from the United States, and delivered to me, four of their cases in the last month which altogether give the approach of the United States courts to this matter. They are coming much more into line with our own common law. I shall tell your Lordships of just two of the cases, because the same circumstances may easily be repeated in this country any day or any week.

The first case was where a little girl of 10 years old was taken by her parents to see some games and in the course of the outing she disappeared. She was last seen talking to a man called Williams. Later on that day, or the next day, his car was found 160 miles away. He was arrested as a suspect. He got in touch with his lawyer—they allow access to lawyers in America—and the lawyer said, "Yes, bring him back here but do not question him on the way." The police officers, unlawfully if you please, did question him on the way back. He disclosed where that little girl's body could be found. The police went to the place and found the corpse of the girl he had murdered.

Was that evidence to be set up against him on his trial? On his behalf it was said that the evidence was unlawfully obtained; that it was obtained by unlawful questioning and that the police ought not to be allowed to take any advantage of such questioning. That argument held force in the lower courts but I am glad to say—and this is what the Chief Justice told me—that they have obtained exemption from their own rules. It would be a crying shame to social life altogether if people who committed such odious crimes were allowed to go free in this way simply because of some mistake or flaw in the police questioning. Therefore, the Supreme Court upheld that the evidence by which the police found that little girl's murdered body was admissible. The accused was duly. convicted and the Supreme Court has affirmed that conviction.

That case referred to a murder. I now move on to drugs. I am not sure whether this case was in California, or where it was. The police suspected a man and a woman of trafficking in drugs, so they kept watch on them. They had their suspicions about them. They traced them to their apartment. The police were very anxious to search that apartment to ascertain whether drugs were there. They could not find a magistrate just then because it was 7.30 at night. They did not get in touch with a magistrate until five o'clock the next day. The police thought, "This will not do, the drugs will have all disappeared before we get the search warrant." So they went into the flat without a warrant and they found tons of drugs. Again, it was said that there was an invalid search and that the police had gone in without a search warrant.

It was claimed to be unlawful and could not be given in evidence against the drug pedlars and traffickers. There was heated argument, with evidence from each side, and eventually the Supreme Court upheld the submission that the evidence of all the drugs that the police found in that apartment was admissible, and again there was a conviction. That shows how the United States Supreme Court has watered down that exclusion rule; so much so that I venture to think that it is becoming much like ours.

My third illustration is our own important case of R. v. Sang in 1979, where the whole House of Lords, as I see it, agreed on the fundamental principle. This was a case where Mr. Sang was believed to have uttered some forged United States currency notes. He was not a very straightforward man at the best of times. He had been in prison before. He met other people in prison and a police officer who had been in touch with him when they were in prison. After he came out the police officers went to Mr. Sang pretending to be innocent purchasers of currency notes, or the like, and, if you please, they bought from Mr. Sang these forged United States currency notes.

Was that to be given in evidence? "Oh", it was said, "it was improperly obtained. It was obtained by means of an agent provocateur. You cannot give that in evidence". I am glad to say that it was held by the judge at the Central Criminal Court, and right through the House of Lords, that that evidence could be given. This man was in possession of forged currency notes. He was selling them, even though it was to a police officer.

The rule of English law in the House of Lords—and, if I may say so, the noble and learned Lord, Lord Diplock, and Lord Dilhorne, have expressed our common law perfectly rightly—is always that the evidence can be given but not how it was obtained. The evidence there of the purchase of the foreign currency notes was clear enough. The evidence which I have told your Lordships of the murdered girl and the evidence of the drugs in the flat are all actual evidence of what was found. The fact that it was unlawfully obtained does not come into the consideration of our courts in that way because your Lordships must remember that that rule is there not for the sake of the accused but in order to keep a discipline on the police to make sure that they do everything correctly. Is it right that if there is a flaw, where it is said there has been unlawful obtaining, that that evidence should be excluded? It seems to me that common law has its exception. It would not allow that evidence to be in if the prejudicial effect outweighed the probative effect. That is what the noble and learned Lord, Lord Diplock, and Lord Dilhorne have said. It seems to me that that expresses our common law. I suggest that that is still good law.

The way that this amendment would alter it is that in all these cases, before they go to the jury, we should have a long trial within a trial before the judge to see what he had to inquire into. He would have to inquire into whether evidence was obtained improperly; for instance, whether it was in breach of a code of practice. That might be disputed. A lot of evidence might have been obtained as a result of a material deception. There might be a considerable amount of evidence about that. In other words, a mass of evidence would have to be gone into at this trial within a trial and then the judge would have to go right through all the other matters: that the prosecution would have to prove this, that the court would have to try that, and so on. In other words. there would be this trial within a trial which might be of an indefinite length simply to say whether or not certain evidence could be brought in. That is what the House of Lords pointed out in the case of Sang. The judge was right. He said, "I cannot go into all this evidence as to how the police obtained these forged currency notes. I cannot go into all that. I am just going to take the fact that they uttered these currency notes"; so he did not have this trial within a trial. Is that not the sensible way to do it? In other words, we should let our common law prevail and let that evidence be given. It is admissible evidence. Let us not go into how far it is lawfully or unlawfully obtained. Let it be given as evidence, unless of course its prejudicial effect outweighs its probative effect, as the House of Lords said.

So far as this amendment is concerned, I would say let us leave our common law as it is and let us leave our judges to develop it. We cannot look too far ahead in all these cases. Let our judges go on to develop it from case to case, as new circumstances arise. Let us remember that in the criminal law we are not trying to discipline the police or punish them for any irregularity or little mistake they may make. We are seeking to detect the criminal and to get the real evidence against him so as to prove the case and convict him. So let us allow this evidence to be given in accordance with the common law.

3.41 p.m.

Lord Mishcon

My Lords, it is always a most exciting spectacle in regard to any amendment to hear a Lord of Appeal in Ordinary, who has the respect of the whole of our profession and of this House, state one point of view, to be followed by a former Master of the Rolls, equally respected and equally loved, taking a contrary point of view. The only consolation that your Lordships have is that at all events on the last occasion Lord Denning agreed with the amendment that was put forward by Lord Scarman. It is very difficult—and, as he knows, I say this with the greatest of deference—to find why it is that he differs from the amendment now that it is rather differently worded, but worded in regard to precisely the same principle as the noble and learned Lord, Lord Scarman, advanced on the last occasion.

I have a shrewd suspicion that a great English judge has been wrongly influenced by an evening spent with the Chief Justice of the United States Supreme Court. I have a very firm idea that, if Lord Denning had invited Lord Scarman along to that meeting, the Chief Justice of the United States would have said that Lord Scarman had supplied him with an ideal corrective for the American law, and he would have gone back with this amendment as fast as he could travel. It may very well be that the noble and learned Lord, Lord Denning, will rise—and, of course, I shall immediately sit down if he even half rises; he knows that—to say that he showed this amendment to the Chief Justice.

Lord Denning

My Lords. I did not have it to hand at the time.

Lord Mishcon

My Lords, that was the admission, improperly obtained, that I was endeavouring to get. I have got it in evidence!

So we are left with the position of a notable speech, where the chief example given to us as to why this amendment should not be accepted by your Lordships has been the recital of three cases. I shall not go into the detail of those three cases; your Lordships remember them. The first one was a murder case, the second a drugs case and the third a forgery case. If those cases are not regarded as being cases where there was a gravity in regard to the offence charged, I know not what gravity means in regard to the criminal law.

They would all have fallen within subsection (1)(c) of the amendment without any difficulty: the court is satisfied that the probative value of the evidence"— the probative value of the evidence in each one of those cases was crystal clear— the gravity of the offence charged"— we have already dealt with that one— and the circumstances in which the evidence was obtained are such that the public interest". and so on. Without any doubt at all subsection (1)(c) covers every single one of them. I am not at all sure that the first case, where there was a promise by an officer not to ask questions of an accused in the course of a long journey, would not come within paragraph (b); namely, that: the court is satisfied that anything improperly done in obtaining it was of no material significance in all the circumstances of the case".

So we are left with this amendment, which, as the noble and learned Lord has said, does two main things—and having repeated them, I shall sit down. The first essential thing that it does is to produce a healthy deterrent effect in order to see that the proper rules, which we were told about and which were going to be so effective—but we were given reasons as to why they were not to be incorporated in this Bill—are obeyed by police officers and others who produce evidence (because the amendment is not limited to police officers). If there is a slight technical breach, the evidence will be admitted. If there are circumstances where the prosecution shows that indeed the challenge to that evidence is a false challenge, it will be admitted. If the circumstances of paragraph (c) are proved to the satisfaction of the court, the court has guidelines within which to see that indeed the evidence can either be admitted or not admitted.

The second thing that I want to say is this—and this, too. I believe, was implicit in what the noble and learned Lord, Lord Scarman, said. In our Bill we are codifying the law relating to arrest, the law relating to stop and search and the law relating to detention; and we are going to deal with the law relating to confessions. Let us see that the law relating to this kind of matter—namely, the admissibility of evidence—is clearly spoken of in our Bill and that it meets with the approval of your Lordships, because it is, as the noble and learned Lord said, safeguarding the ordinary rights of citizens.

Lord Campbell of Alloway

My Lords, having spoken to this amendment in its original form at Committee stage, may I be allowed to say that all your Lordships must be indebted to the noble and learned Lord. Lord Scarman, for tabling this amendment, and the previous one, which serves as the catalyst for Amendment No. 139,to be moved in due course by my noble and learned friend the Lord Chancellor? Although I happen to support the approach of the noble and learned Lord. Lord Denning. that we should leave it to the common law and to the discretion of the judges, and trust them, and that we should restore the pre-Sang position, which obtained under three successive Lord Chief Justices, the fact of the matter remains that a comparison between this amendment and Amendment No. 139 must be made.

In a sense they both deal with the same problem, which is the exclusion of evidence that has been improperly obtained. This amendment, in effect, goes much wider than restoring the pre-Sang position, because it extends the power of exclusion beyond the evidence of the accused, to include any evidence. With the utmost respect, I question whether that extension is necessary. I respectfully question whether the formalised complexity of the amendment is justified even if one wishes to implement the two motive concepts, which are to prevent abuse of police power and to secure a fair trial.

I would most respectfully suggest that both are broadly but adequately covered in the amendment to be moved in due course by my noble and learned friend the Lord Chancellor. Although I much welcome the drafting change to "improperly" instead of the original "unlawfully" in the old Amendment No. 160, I do suggest that the amendment still has this aura of complexity and that on the whole it is better to leave it to the judicial discretion in the rather more limited and indeed more traditional way as proposed by my noble and learned friend's amendment, to which no doubt he will be speaking later.

3.52 p.m.

Lord Hutchinson of Lullington

My Lords, on behalf of those on these Benches and, if I may say so, speaking personally as someone who has spent the whole of his professional career in the criminal law, I should like to support this amendment as strongly as I can. The noble and learned Lord who moved the amendment said at Second Reading that our efforts at the Committee and Report stages of this Bill would be an historic challenge to the revising skills of this Chamber. I must regrettably say that perhaps we have not entirely met that challenge. It has been a great personal sadness that the noble and learned Lord who has moved this amendment has not been able to assist us in any other clauses in this Bill, some of which are as important as this one.

We on these Benches have a later amendment, Which is Amendment No. 146. Nevertheless we support this amendment because it now, as re-amended, includes very much the matters which we wish to cover in our amendment. Our view here is quite simply that right across the whole criminal process, in the magistrates' court and elsewhere, the judge or the presiding magistrate should have a discretion to ensure in every single case that the defendant has a fair and proper trial. It could not be stated more simply, and it is included in this amendment. As the noble Lord, Lord Campbell, has just said, three Lord Chief Justices—the noble and learned Lords, Lord Goddard, Lord Parker and Lord Widgery—all took the view that the criminal courts had this discretion. Why was it that they took this view? I should like to suggest that it was because each of them presided over the Court of Appeal (Criminal Division) and had day-to-day experience of the criminal law and what was going on in the criminal courts.

That was the situation until we had the case of Sang, which has been referred to, where the noble and learned Lord, Lord Diplock, in the more rarified atmosphere of the Appellate Committee of this House, looking at all the cases, made a speech in which he laid it down that the criminal courts had not got this discretion and that the only discretion they had was the one to which reference has already been made; that is, that however outrageous the circumstances in which the evidence before the court had been obtained, nevertheless the court was bound to act on that evidence and only to keep it out if, as has already been said by the noble and learned Lord, Lord Denning, the prejudicial effect in the trial was greater than the strength of the proof of the evidence. With the greatest possible respect, I would say that that decision is totally legalistic and totally out of touch with what goes on in criminal courts. Criminal courts cannot be bound by this sort of legalistic approach.

I am sure that all noble Lords who sit as magistrates in courts up and down the country would agree. It may be all right to take that attitude in civil courts, but every single criminal case which is heard, almost without exception, will affect somebody's character, will affect somebody's family, will affect somebody's job. Even although the value of the goods in question may be only trivial, even although, say, the indecent behaviour in public may be trivial, the result of the case is of overwhelming importance to somebody when that case is heard. Surely the power should be given to every criminal court in this country. But if evidence is obtained in the most outrageous way—is obtained by dirty tricks, as it might be called; by dishonesty. be deceit—a court should not be put in the position of saying, "I will allow this evidence to be given, for this person's character to be blasted, on evidence which has been obtained in this way", may be by someone who is simply out to do the person in, or to get revenge on the person, or whatever it may be, or, indeed, by police officers completely disregarding the law which affects them.

Finally, may I say this. Corruption can very easily enter into the criminal process. One only has to look at what happens in the criminal law in many other countries. As far as this country is concerned, it is the rarest thing to find in the criminal process. As the noble and learned Lord, Lord Scarman. said in moving his amendment earlier, it is the purity of the prosecution which is the purpose of his amendment. I would say with the greatest possible respect to the noble and learned Lord, the Lord Chancellor: why should the criminal courts not have this discretion?

In answer to the amendment at Committee stage, the noble and learned Lord put two reasons. One was the legalistic reason. to which I have already referred. The other was that it would mean that judges and magistrates would have to make subjective judgments as to what was deceitful, what was dishonest and so on. My only comment on that is that this Bill is shot through from first to last with subjective judgments which are to be made by police officers in innumerable circumstances when what triggers off their powers is having a reasonable suspicion or a reasonable belief that something or other has happened. Are judges and magistrates not to be allowed to have a reasonable belief that something dishonest or something deceitful has happened, and be perfectly able to make that judgment, as indeed police officers have to make that judgment?

I support this amendment with all the strength at my disposal on the very simple basis that what we want, quite apart from the technicalities of the law and quite apart from the technicalities of previous decisions, in a criminal court in this country is, quite simply, a discretion to see that the trial is fair.

4.1 p.m.

Lord Hooson

My Lords, in his memorable speech on Second Reading in this House, the noble and learned Lord, Lord Scarman, bade us not to try to limit powers to be given to the police, but to pay more attention to the safeguards. I think that the House has followed that lead and has not objected to the giving to the police of the powers that they need to deal with the modern, sophisticated criminal who we meet these days in our criminal courts. Nevertheless, we are throughout considering what safeguards are necessary for us in a civilised society. We are concerned with law and order in a civilised society.

The amendment that the noble and learned Lord, Lord Scarman, has moved today is in my judgment the best of the amendments dealing with this particular point—better than that in my name, together with that of the noble Lord. Lord Hutchinson of Lullington. We, in our amendment, seek simply to go back to the pre-Sang position, back to the common law as described by the noble Lord, Lord Campbell of Alloway. In a Bill of this kind, we consider it necessary to have codes of practice to govern the practices of the police. Yet there is no real sanction. We are putting a premium, are we not, on the fact that these rules of practice can, in everyday life, be disregarded. What is to be the eventual sanction? Is it not right that the noble and learned Lord, Lord Scarman, has carefully drawn up an amendment, that we criticised it when it was before us in Committee, and that it has now changed considerably? In its present form, it appears to me to meet every single objection that has been made to it in this House in this debate.

Let us take the objections made by the noble and learned Lord, Lord Denning. The noble Lord, Lord Mishcon, was absolutely right. The three instant cases cited by the noble and learned Lord, Lord Denning, would surely all have been met by the provisions in subsection (1)(c) of the amendment. How can it be thought that the murder case of Williams in the United States which went to the Supreme Court—I believe that a judge had admitted the evidence in the first instance, even in the United States, in any event—or the drugs case from California that he cited would not come within the proviso in paragraph (c)?

We really have to ask ourselves, do we not, whether in this particular instance in this Bill, we are not saying that we must have codes of practice for the police, but that we will turn a blind eye if they disregard the codes of practice. Of course, we need a safeguard. Of course, we know that there are grave cases where it is essential that a judge, for example, has discretion to allow the evidence. The probative value of that evidence may be such that no sensible, reasonable man would think of excluding it, however improperly it were obtained. It depends on the gravity of the offence and the overall circumstances. All that is provided for in the amendment moved by the noble and learned Lord, Lord Scarman.

I think that the noble and learned Lord the Lord Chancellor, who has tried to meet the points put in Committee with his own amendment, will be the first to admit that his amendment is much more narrowly drawn and is based on a different concept—simply, that a presiding judge at a trial will exclude the evidence if it is prejudicial in the trial. But that in no way provides the kind of eventual sanction that is necessary if we are to make sure that evidence is not widely improperly obtained, so that it becomes a practice in this country to obtain evidence improperly and run no risk of it being excluded when we arrive at the day of trial.

Lord McCluskey

My Lords, I noticed that the noble and learned Lord, Lord Scarman, referred to the unlikelihood of anyone introducing into the United Kingdom a certain rule. The noble Lord, Lord Hutchinson of Lullington, referred to this country and the noble and learned Lord, Lord Denning, chose to have a conversation with the Lord Chief Justice of the United States. It is rather a pity that your Lordships did not cast an eye north of the Border. This new clause, as drafted by the noble and learned Lord, Lord Scarman, encapsulates beautifully the common law practised in Scotland. It works. It does not work perfectly because one would be a fool not to recognise that, just as does this new clause, so does the common law in Scotland, put the whole burden subjectively on the judge; and judges, being elderly, male, white and relatively wealthy, tend to have certain in-built prejudices. Those prejudices are rather in favour of what is loosely described as law and order. Therefore, their Lordships always tend to excuse the behaviour of the police because of such considerations as the circumstances, the gravity, etc. But that, in an imperfect world, is probably the best that one can do. For the reason that this kind of rule works perfectly well in Scotland—subject to that consideration—I would commend it to your Lordships in this particular form.

There are, however, two matters to which I would invite further attention if it is not too late to do just that. First, this new clause refers to the evidence given by the prosecution. It is perfectly possible—I have seen it happen many times in cases in which I have been involved for the prosecution or the defence—for the co-accused to seek to introduce into the trial evidence that has been improperly obtained and which, for that reason, the prosecution has chosen to leave out. This new clause does not allow the judge, as I see it, to exclude evidence of that kind.

Secondly, what worries me about the common law in Scotland and about subsection (1)(c) are the words "the gravity of the offence", because that seems to be saying that the graver the charge the more tolerant that court would be towards irregularities on the part of the police. That, I am afraid, is a principle that I am not very enamoured of. However, in an imperfect world, this, in my view, is a new clause that goes as far as one can reasonably expect, and I commend it to the House.

The Lord Chancellor

My Lords, I am very grateful to my noble and learned friend who moved the amendment for the immense care that he has given to this subject. I am sure that the House is greatly indebted to him both for the art with which he has attempted to cope with this problem by way of his draftsmanship and also for the speech with which he supported his argument. At the same time, I know that he will forgive me if I take a little time in answering this amendment. I think that it is more difficult than he supposes. I think also that it raises more serious questions than he has quite expounded.

With one remark of the noble Lord, Lord Hutchinson, I profoundly disagree. It is this amendment that is legalistic. It is simplicity which we seek to obtain and which we want to get, provided that we can get it with sufficient safeguards. I hope that the House, as it has always done, will bear with me patiently while I expound my own views and exactly disavow the views attributed to me earlier by the noble Lord, Lord Hutchinson.

I start with a belief that I have about the development of the common law, to which the noble and learned Lord, Lord Denning, referred. It has moved away from legalism and it has moved steadily towards simplicity. In the nature of things, simplicity is not exactly obtainable, and there are exceptions to which I shall come. But the great purpose of criminal law is to convict the guilty and to acquit the innocent, with this proviso: that the conviction of the innocent is such a terrible possibility that every possible safeguard ought to be applied in order to prevent that happening, both by what has been called the purity of the trial—I prefer to call it fairness—and by the burden and standards of proof and the whole jury system.

That is the basis from which we have started and to which we are steadily trying to get. Artificial rules of evidence are to be avoided, with great respect, unless it can be shown they serve a useful purpose in achieving the objects which I have tried to set out. The general rule must be that what is logically probative ought to be admissible to the jury; and, subject to the burden and standard of proof, it is for the jury to make up its mind, after being properly directed, on matters of reliability and relative weight and certainty.

To that, there are two broad classes of exception. The first is where the emotional effect of probative evidence is too strong to allow the trial to be fair. The clear and obvious example, of course, is the introduction of previous convictions. I would defy the most precise lawyer in the House to give a man a fair trial if he knew how had his record was. Certainly I could not, and for that reason that kind of evidence, although it is logically probative, is excluded from the jury.

But we are in the presence of the other problem, and this is a much more difficult and debatable matter. That is the question of how far the judiciary ought to police the police themselves. In some cases they clearly have to do so. There are cases of inhumane conduct, to go to the extreme limit, where it is essential—noble Lords who are familiar with my humble judgments will know that I have said this on more occasions than one—that one should exclude evidence altogether because it was obtained by oppressive means.

A much more difficult question is the question of confessions. but there, too. we have allowed the judiciary to police the police, originally on the common law, as expounded by the noble and learned Lord. Lord Denning. and in this Bill by Clause 75, the clause dealing with confessions. I am of course aware that the amendment of the noble and learned Lord, Lord Scarman, deals with territory which excludes confessions; one has to read only the first couple of lines of the amendment to see that that is the case. But I am sure the House will forgive me if I have put it into that context because, as we discussed in Committee, although the amendments may be different and deal with different branches of the subject, I think it is right that we should attempt to deal with them on similar principles.

The noble and learned Lord's amendment introduces into the field of evidence other than confessions the argument of total exclusion. That is a road down which the Americans have gone and down which, with great respect to all who may differ, I am determined not to go. I believe it goes a significant way down that road, and I should like to examine the consequences of doing so. Of course, the effect of going down this road, even to the extent to which we have always thought it proper to do so, is the trial within the trial. That is an evil, and I would say, unmixedly an evil; but it is also, in the field which I have been discussing, a necessary evil.

One cannot avoid it, because what happens at the trial within the trial, dealing, let us say, with confessions—because that is the field in which it works today—is that all the relevant evidence of the prosecution, and, if the defence so chooses, the evidence of the defence, is deployed, and a very great deal of time is taken up by making the judge of law—the judge on the Bench—for this purpose the judge of fact before it goes to the jury. Then, if it goes to the jury, the whole of that evidence is deployed again. It would not matter so much, although it does take up a lot of time and is the cause of much delay, if it was not also productive of injustice; because the fact is that when it is deployed for the second time the evidence loses its purity. The cross-examination is already known by the witnesses who have given evidence; and, indeed, the witnesses know or can easily find out what the other witnesses are saying.

It is, therefore, an evil, although I frankly concede that in the field in which it is operated—and operated every day in trial on indictment—it is a necessary evil, and I do not attempt to argue anything else. But I start by saying that it is an evil and that those who wish to introduce it on an elaborate scale and in a totally new field have the burden of proof very heavily stacked against them.

I now proceed, if I may, rather on the lines of my noble friend Lord Campbell of Alloway to go down the road of trying to show the armoury of protection provided by the Bill, which—I agree up to a point. but only up to a point, with the noble Lord who referred to this—is an attempt to codify this branch of the law. Later we shall look in detail at Clause 75, which deals with confessions. We have that as an absolutely basic protection, because we all know that of the cases which in the past have given rise to false convictions there are two which stand out a mile. There is the evidence of false identification and there is the case of improperly obtained confession. Of course, this is a very wide protection indeed.

Secondly, we have the codes of practice. I do with great respect—I am coming round to some parts of the words in this amendment—question how far it is wise, proper, prudent or possible to put the codes of practice better into the Bill than is already being done by Clause 66(7) of the Bill as it stands. This is a document of 61 pages or so in length. and if one codifies it into the Bill in this form one is doing precisely the thing to which the noble Lord, Lord Hutchinson, was taking exception; one is introducing legalism and artificiality into the rules of evidence when one's object ought to be to discover the truth. The burden of proof rather lies on those who wish to make this introduction to establish that what they are doing is achieving the ends of justice, which include the conviction of the guilty and not simply the protection of the suspect by this particular clause.

However, at this stage, because a somewhat inaccurate account of the matter has been given in the course of this debate—I am sure unwittingly—I should like to ask your Lordships to turn for a moment to what Clause 66(7) in fact says, because that is the clause which already builds the code of practice into the Bill. It says: 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"— and here we come to the vital words— 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". When we had our preliminary discussion in Committee—and let me say at once that I think it was an extremely valuable course for us to have taken. because it enabled us to read each other's minds to a very much greater extent than we would otherwise have been able to do—I came very clearly to the conclusion that the Bill as it stood was defective in a particular way. The result of my lucubrations was in the new clause which stands in my name in the Marshalled List as Amendment No. 139. Whatever else can be said for or against it, it is much simpler than the amendment which stands before us now. Whether it could stand if this amendment were passed, I do not know. As a matter of fact, I would point out to the noble Lord. Lord Hooson, and to the noble and learned Lord, Lord Scarman, that it is wider and not narrower than the clause as drafted, because as I read Amendment No. 139 it applies across the range of evidence and is not limited to evidence other than confessions.

Moreover, it is targeted on to a more accurate target in my opinion because it is targeted on to the fairness of the trial and not simply (although it includes it) the way in which the evidence was obtained. That is no accident. I ventured in the course of our Committee discussions to refer to the case of Payne, which, although it is not a very well known case, illustrates rather well the point which I am about to make.

The case of Payne was a case where the evidence was perfectly properly obtained. I gave the details previously, and I shall not repeat them now. The evidence was properly obtained, but it was proposed to be used unfairly by the prosecution for a purpose other than that for which it was obtained. Lord Scarman's amendment would not, I think, hit that case at all, because the evidence was obtained perfectly properly. But my amendment would do so, or at any rate it is intended to do so. I think, therefore, that it is better.

I would claim that the amendment which stands in the name of the Government—which, I may say, was drafted not by myself but by the professionals at our disposal, and so I can speak about it with complete frankness and without false humility—is intended to be flexible. It is intended to be realistic; it is intended to hit the right target; and it is intended to avoid artificiality.

That brings me back to the artificiality of this clause and the inescapable defects. If I deal with some drafting points, I shall try to avoid them being purely drafting points. The noble Lord, Lord Mishcon, in the course of his very interesting and, as always, eloquent and persuasive debating speech, attacked what the noble and learned Lord, Lord Denning, has said on the basis of the fact, which is undoubtedly correct, that paragraph (c) in fact allows the gravity of the offence charged to weigh in favour of the admission of the evidence. He said to the noble and learned Lord, Lord Denning, I think perfectly properly, why, in the kidnap, rape and murder case of the little girl, there are the words, "the gravity of the offence". But does it really tell in favour of the amendment? That is the question. In my amendment those words are absent.

The noble and learned Lord, Lord McCluskey, with whom I am not going to cross swords on the law of Scotland because I am totally unqualified to do so, put his finger on what to my mind is an irremediable defect in this amendment. Are we really going to say, as the noble and learned Lord, Lord Scarman, has said, that if a person is charged with a grave offence like rape, murder, kidnapping or hard drugs, a lower standard of proof and evidence is going to be admitted against him than if it were a trivial offence of, for example, careless driving? It seems to me that that is the most perverse thing that you can say about it, and yet it is one of the new elements which my noble and learned friend Lord Scarman found it necessary to insert into his new amendment as a result of the criticism which the old amendment had received during the Committee stage.

This is not a drafting point. If it were a drafting point I would not make it. It is basically a point of principle. I am going to suggest that if we look a little carefully at this amendment we will find that similar points arise on almost every line of it. Let us look at the first few lines of the amendment. It says: If it appears to the court … that … the prosecution may have been obtained improperly". What standard of certainty is required by the words: may have been obtained improperly"? "Improperly" is defined in subsection (2). Whether the definition is a good one because of what I have been saying about the code of practice is, I think, open to doubt. It goes on to say: the court shall not allow the evidence to be given unless — the prosecution proves — beyond reasonable doubt that it was obtained lawfully and in accordance with a code of practice (where applicable) … or … the court is satisfied that anything improperly done in obtaining it was of no material significance".

What sort of significance is "material significance"? This is not a drafting point. It is a pointer to the dangers which are adopted by an artificial and legalistic approach to the simple law of evidence, which ought to depend primarily on the logically probative value and relevance of the evidence. I repeat: it says, "no material significance". At paragraph (c) we get reference to: the gravity of the offence charged or the probative value of the evidence". I would venture to suggest, for the reasons I have given, that these particular tests are not the right tests, and that the right, broad sweep is contained in the far shorter, far simpler and far superior, in my humble submission to the House, Amendment No. 139.

However, let us look at the complications. There are three tests in subsection (1) and, for the purpose of discovering whether evidence has been improperly obtained, four more in subsection (2). That is seven tests in all to be applied in a trial within a trial by the judge of law, whose function it is to determine the law and not to determine the weight, the reliability, relevance or probative value of evidence of fact. I have already said that the trial within a trial is a growing evil in our criminal jurisprudence. I admit it within the field which I have frankly confessed to be a necessary evil, the field of confession. But I venture to think that to introduce it into this totally new field of evidence, other than confession, is a backward step in the wrong direction—in the direction taken fatally by the American courts—and in the opposite direction to which the real genius of the common law and of the English jurisprudence leads us to go in the interests of logic, rationality and simplicity.

It is for this reason—and I say this with the utmost respect to my noble and learned friend on the Cross-Benches whose amendment it is—that I do not believe that this amendment will improve our jurisprudence. I believe that with the Bill as drafted, plus Amendment No. 139, we shall have dealt—I hope once and for all—with what is admittedly a delicate and difficult matter.

Lord Scarman

My Lords, before I rose I paused for a moment or so in order to allow the dust to settle after the thunder of the heavy artillery. The sound of the barrage that came from the noble and learned Lord on the Woolsack and, after he had adjusted his sights, from the noble and learned Lord, Lord Denning, was most impressive. But, of course, they were firing at the wrong target. They completely destroyed the American automatic, inflexible rule of exclusion. However, of course, the Supreme Court of the United States of America is already busy doing that and is, with respect, the more appropriate body to do it. I would simply say to the noble and learned Lord, Lord Denning, what the noble Lord, Lord Mishcon, has already said: that the murder case which he cited (which of course one knew about when drafting this amendment) and the drugs case that he cited are both taken care of in this amendment.

What the noble and learned Lord, Lord Denning, did not tell us is whether the Chief Justice of the United States of America favoured a state of the criminal law in which there was no discretion to exclude evidence upon the sole ground that it had been improperly or unlawfully obtained. I think that one would discover that he had set his sights on the advantages of a discretionary rule in place of their automatic rule, and I invite the House to say that justice requires a discretionary rule in place of no rule at all.

The noble and learned Lord on the Woolsack expressed the view that this amendment was dangerous because it was taking us a significant way towards the automatic rule, which none of us wants. Of course, if one is substituting for no rule at all a discretion of the judge, one is making a move towards middle ground. I have never yet heard, save in some political circles, with which, of course, I am not acquainted, that there was anything wrong with the middle ground in most fields of civilised activity, and I am proud to be a Member of the Cross-Benches, which, as I look around me, appear to be the middle ground of this House. I would suggest that the middle-ground nature of this amendment is greatly to its advantage.

The noble and learned Lord on the Woolsack no doubt took legitimate tactical advantage of this discussion to introduce the qualities of his own amendment, Amendment No. 139. In opening this debate I was careful not to discuss the disadvantages of Amendment No. 139. I shall not be tempted to do so now, but I would invite those of your Lordships who perhaps have a moment to relax over a cup of tea some time during the course of the afternoon to look at some of the extraordinary things in that amendment, including the use of the adjective "prejudicial" in a context which must raise as much dust as the heavy guns that we have heard this afternoon.

It is said, of course. that this amendment is legalistic. It can be said to be legalistic only because it contains rather more than a dozen words; it does, and deliberately so. It contains guidelines to assist the judges in the exercise of a discretion which I would suggest is necessary in law. But that is all that it does. Guidelines have become immensely fashionable in the modern jurisprudence. Noble Lords may have seen the guidelines upon interest payable upon damages, which would have been introduced judicially by the noble and learned Lord, Lord Denning, sitting in the Court of Appeal. They are as full of words as is my amendment—if not fuller. I never heard the noble and learned Lord think of them, or criticise them, as being legalistic. The mere fact that there are a few subsections here indicating to the professional mind of a judge that the matter is legalistic does not maintain the case of legalism.

The important point in this amendment is, first, that if effect is given to it, it will restore to the law the power to exclude evidence unlawfully obtained which Lord Goddard, Lord Parker and Lord Widgery thought was in the law and which many others thought was in the law until the decision in Sang. However, there is one difference—it is an important difference and it is on this note that I shall leave this debate—between the discretion, as they saw it, and the discretion as would appear in this Bill if the amendment is passed. They saw the discretion as one in which the evidence would be admissible unless the judge chose to exclude it. This amendment puts it the other way round. The evidence is to be excluded unless, in their discretion, they allow it in. Why that difference? One small, significant answer tells the whole story. It is because there was no Police and Criminal Evidence Act in their day, and we are discussing this amendment in the light of a codification known for the moment as the Police and Criminal Evidence Bill.

Of course, the amendment must take note of this very significant change in our criminal law. I would say that, of course, we must take the opportunity offered by this Bill to get this degree of codification into this very important field. That is the other reason why we have to look at the amendment, accepting that it will act as a deterrent to abuse of power by the police. That is of course to act only indirectly. No judge has the disciplinary power over a policeman, but of course if a policeman's evidence is going to be excluded, there is the very necessary and legitimate element of deterrence in the interests of a citizen's right.

The only difference arises from the fact that this amendment has to be viewed—and I invite your Lordships to view it—in the context of this Bill, which was unknown to Lord Goddard, Lord Parker, and Lord Widgery, but they knew all about the administration of justice and of criminal justice, and they believed that the judge should have a discretion to exclude improperly obtained evidence. My Lords, I commend the amendment.

4.41 p.m.

On Question. Whether the said amendment (No. 131) shall be agreed to?

Their Lordships divided: Contents, 125; Not-Contents, 118.

CONTENTS
Airedale, L.	John-Mackie, L.
Allen of Abbeydale, L.	Kagan, L.
Amherst, E.	Kilmarnock, L.
Ampthill, L.	Kinloss, Ly.
Ardwick, L.	Lawrence, L.
Attlee, E.	Leatherland, L.
Auckland, L.	Listowel, E.
Banks, L.	Llewelyn-Davies of Hastoe, B.
Barnett, L.	Lloyd of Hampstead, L.
Beaumont of Whitley, L.	Lloyd of Kilgerran, L.
Bernstein, L.	Loudoun, C.
Beswick, L.	Lovell-Davis, L.
Birk, B.	McCluskey, L.
Blease, L.	McGregor of Durris, L.
Blyton, L.	McIntosh of Haringey, L.
Boston of Faversham, L.	Mackie of Benshie, L.
Bottomley, L.	McNair, L.
Brooks of Tremorfa, L.	Mais, L.
Broxbourne, L.	Mayhew, L.
Bruce of Donington, L.	Merrivale, L.
Buckmaster, V.	Milford, L.
Burton of Coventry, B.	Mishcon, L.
Carmichael of Kelvingrove, L.	Monson, L.
Cledwyn of Penrhos, L.	Mulley, L.
Collison, L.	Munster, E.
Cooper of Stockton Heath, L.	Nicol, B.
Cottesloe, L.	O'Brien of Lothbury, L.
Craigavon, V.	Oram, L.
David, B.	Phillips, B.
Dean of Beswick, L.	Plant, L.
Denington, B.	Ponsonby of Shulbrede, L.
Diamond, L.	[Teller.]
Donaldson of Kingsbridge, L.	Rochester, L.
Donnet of Balgay, L.	Ross of Marnock, L.
Elwyn-Jones, L.	Scarman, L.
Elystan-Morgan, L.	Seear, B.
Ennals, L.	Seebohm, L.
Ewart-Biggs, B.	Sefton of Garston, L.
Ezra, L.	Serota, B.
Falkland, V.	Shackleton, L.
Gaitskell, B.	Stallard, L.
Gallacher, L.	Stamp, L.
Galpern, L.	Stedman, B.
Gifford, L.	Stewart of Alvechurch, B.
Gosford, E.	Stewart of Fulham, L.
Graham of Edmonton, L.	Stoddart of Swindon, L.
Grey, E.	Stone, L.
Hampton, L.	Strabolgi, L.
Hatch of Lusby, L.	Taylor of Blackburn, L.
Hayter, L.	Taylor of Gryfe, L.
Henderson of Brompton, L.	Taylor of Mansfield, L.
Hooson, L.	Tordoff, L.
Houghton of Sowerby, L.	Underhill, L.
Hughes, L.	Wallace of Coslany, L.
Hunt, L.	Walston, L.
Hutchinson of Lullington, L.	Wells-Pestell, L.
Hylton, L.	Whaddon, L.
Hylton-Foster, B.	White, B.
Ilchester, E.	Wigoder, L. [Teller.]
Irving of Dartford, L.	Willis, L.
Jacques, L.	Winstanley, L.
Jeger, B.	Winterbottom, L.
Jenkins of Putney, L.	Wootton of Abinger, B.

NOT-CONTENTS
Abinger, L.	Lauderdale, E.
Ailesbury, M.	Long, V.
Airey of Abingdon, B.	Lucas of Chilworth, L.
Alexander of Tunis, E.	McAlpine of Moffat, L.
Allerton, L.	McFadzean, L.
Alport, L.	MacLehose of Beoch, L.
Avon, E.	Macleod of Borve, B.
Bauer, L.	Mancroft, L.
Bellwin, L.	Margadale, L.
Beloff, L.	Marley, L.
Belstead, L.	Massereene and Ferrard, V.
Berkeley, B.	Milverton, L.
Bessborough, E.	Molson, L.
Blake, L.	Montagu of Beaulieu, L.
Caccia, L.	Mottistone, L.
Caithness, E.	Mowbray and Stourton, L.
Cameron of Lochbroom, L.	Moyne, L.
Campbell of Alloway, L.	Newall, L.
Campbell of Croy, L.	Norfolk, D.
Cathcart, E.	Northchurch, B.
Chelmer, L.	Orkney, E.
Chelwood, L.	Pender, L.
Cockfield, L.	Peyton of Yeovil, L.
Coleraine, L.	Plummer of St. Marylebone,
Cork and Orrery, E.	L.
Daventry, V.	Polwarth, L.
Davidson, V.	Radnor, E.
De La Warr, E.	Rankeillour, L.
Denham, L. [Teller.]	Reigate, L.
Denning, L.	Renton, L.
Digby, L.	Renwick, L.
Ebbisham, L.	Rhodes, L.
Eccles, V.	Rochdale, V.
Ellenborough, L.	Romney, E.
Elles, B.	Sandford, L.
Elton, B.	Sempill, Ly.
Energlyn, L.	Skelmersdale, L.
Fanshawe of Richmond, L.	Stanley of Alderley, L.
Ferrier, L.	Stodart of Leaston, L.
Fortescue, E.	Strathcarron, L.
Gibson-Watt, L.	Strathcona and Mount Royal,
Gisborough, L.	L.
Glanusk, L.	Sudeley, L.
Glenarthur, L.	Suffield, L.
Gowrie, E.	Swinfen, L.
Granville of Eye, L.	Swinton, E. [Teller.]
Gray of Contin, L.	Terrington, L.
Gridley, L.	Teviot, L.
Hailsham of Saint	Teynham, L.
Marylebone, L.	Thorneycroft, L.
Hawke, L.	Tranmire, L.
Henley, L.	Trefgarne, L.
Hives, L.	Trumpington, B.
Home of the Hirsel, L.	Vaux of Harrowden, L.
Hood, V.	Vickers, B.
Hornsby-Smith, B.	Vivian, L.
Inglewood, L.	Westbury, L.
Kaberry of Adel, L.	Whitelaw, V.
Kilmany, L.	Wynford, L.
Kitchener, L.	Young, B.
Lane-Fox, B.

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 75 [Confessions]:

4.49 p.m.

Lord Campbell of Alloway

moved Amendment No. 132: Page 68, line 22, at end insert— ("Provided that where it appears that such confession was or may have been obtained in the course of interrogation of an accused person in detention who was not:

1. (a) informed of his right of silence,
2. (b) afforded an opportunity of correcting a contemporaneous record of such interrogation at the time when it was made,
3. (c) if possibly mentally ill or mentally handicapped or there being no clear evidence to the contrary, accorded throughout

such interrogation the presence of the nearest available relative of such person or some other person who was responsible for his care and custody or another responsible person who was not a police officer, 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 that the confession (notwithstanding that it may be true) was not obtained as aforesaid unless such confession is corroborated by evidence extrinsic to such interrogation."). The noble Lord said: My Lords, I put down a marker for this amendment on Second Reading when I sought to suggest to your Lordships that the measures of safeguard under what was then Clause 73, but is now Clause 75, to ensure reliability for this type of confession as distinct from the written statement under caution did not go nearly far enough. In its original state the amendment took the form of a new clause after Clause 73. That was Amendment No. 159 at Committee stage.

In the course of debate my noble and learned friend the Lord Chancellor most helpfully pointed out that the structure of the Bill could not accommodate that form of drafting, but that he would look at the principle without commitment. In the result this amendment, as a proviso to Clause 75 (1), was drafted. It has received serious consideration by my noble and learned friend the Lord Chancellor, who has informed me (for which I am grateful to him) that he is not able to accept it. Indeed, as he pointed out in debate, this is perhaps because Clause 66(7) ensures that any breach of a relevant provision of the code of practice shall be taken into account and aired before the judge in determining the question of admissibility of a confession.

To set this amendment in context with the Bill, it is right to say that it in no way detracts from Amendments Nos. 133, 135 or 137, which are, of course, all separate issues. But paragraph (c) of this amendment covers the same ground as Amendments Nos. 134 and 136. This amendment is not concerned with evidence of a fact discovered as a result of such a confession with which it is concerned to which Clause 75(6), as amended by Amendment Nos. 138A and 138B, applies but these amendments affect the corroboration factor in this amendment and, in passing, they are wholly acceptable.

How does one make the case for this amendment? I would suggest that one does so by asking a very simple question: in what circumstances, where the safeguards in paragraphs (a), (b) and (c) have not been observed, could an uncorroborated confession be treated by any judge as reliable beyond all reasonable doubt within Clause 75(2)(b) and especially so in the case of a disadvantaged person within the meaning of paragraph (c)? If the dangers of a lengthy detention for questioning were recognised on Second Reading as affecting reliability, is it not right that mere exhortations to observe such safeguards should be relegated to a code of practice without any or any adequate, sanctions at all? I stress this aspect because reference to the dangers of lengthy interrogation as affecting reliability was made by the noble and learned Lord, Lord Elwyn-Jones, the noble Lords, Lord Hooson and Lord Hutchinson of Lullington, and indeed other noble Lords at Second Reading.

If the intendment of the Bill is to clarify and codify such procedures, is it not time that the legislature should recognise the existence of this inherent danger, to which noble Lords spoke from all sides of the House, and grasp this nettle?

This amendment is a qualifying amendment to Clause 75(1). It seeks to ensure that in the interests of reliability certain minimal procedural safeguards, most of which appear in the code of practice, are observed before this type of confession, in the absence of corroboration, can be admissible. In no way does it prevent conviction on an uncorroborated confession, as is the position in Scotland.

This amendment, as your Lordships appreciate, is concerned only with confessions made by a person in detention in the course of interrogation, and not with the written statement made under caution, though Clause 75(8) applies to both. I draw this distinction because it ought to be drawn. It is this type of confession which is the source of so much trouble, so much expense and, indeed, so much friction in community and courtroom relations with the police. This distinction is recognised by juries up and down the country, who have shown a marked reluctance to convict on this type of uncorroborated confession.

It may well be that on a mere comparision of the provisions of the code of practice—to which I shall come in a moment—with the relevant provisions of this amendment there is not very much between myself and my noble and learned friend the Lord Chancellor. It is right that one should perhaps take the code of practice, because if your Lordships square off paragraph (a) of the amendment, you will see that it roughly represents Article 11 of the code of practice as to cautions, which in turn reflects the Judges' Rules. Paragraph (b) of this amendment more or less reflects the provisions of Article 12.12 of the code of practice as to contemporaneous recording and Article 13.1 of the code of practice is to some degree, but far from sufficiently, reflected in paragraph (c) of the amendment, beause all Article 13.1 says is: An arrested juvenile"— That does not apply— or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies".

I would submit that the safeguard is more appropriately set out in paragraph (c) of the amendment. It is true that the provisions of paragraphs (a), (b) and (c) of this amendment broadly reflect the code of practice, but this is where the gap comes that is so difficult to bridge—the gap between those who support the amendment and those who oppose it. This amendment seeks to remove breaches of the code of practice from the "circumstances" in which the judge, if not satisfied beyond all reasonable doubt as to "reliability" under Clause 75(2), must exclude the confession. This object is to be achieved by enjoining mandatory exclusion if there has been non-observance or breach of these provisions of the code of practice. These provisions will be reflected in the Bill if the amendment is accepted. Mandatory exclusion of such confessions will be enjoined unless there is corroboration. The question is simply whether Clause 75 as it stands with Clause 66(7) can afford the necessary opportunity for challenge of the reliability of this type of confession—not the written statement—in the circumstances where the safeguards of the code of practice have been breached and there is no corroboration; or whether, if that is not appropriate, it is your Lordships' view that Clause 75(1) should be amended in accordance with this amendment. I beg to move.

5.2 p.m.

Lord Elwyn-Jones

My Lords, the particular intention of protecting the position of disadvantaged persons such as the mentally ill, which is inherent in this amendment, is a motivation with which I certainly sympathise. I venture to suggest, however, that Amendment No. 136 is perhaps more effective in achieving the purpose, if that is the main purpose that the noble Lord has in mind—but we shall come to that in the fullness of time. In the meantime, I am bound to say I find that the drafting of Amendment No. 132 is substantially at fault, if I may put it in that rather blunt way.

First, it is not at all clear whether paragraphs (a), (b) and (c) are intended to be cumulative safeguards or alternatives. That does not appear from the text of the amendment. Secondly, while paragraph (a) and (b) are clear enough, when we come to paragraph (c) we have the unhappy initial words, if possibly mentally ill or mentally handicapped". "Possibly" is, unhappily, an extremely vague term on which to ask the police to judge a suspect or, indeed, a court to make a ruling. It is not easy to conceive what clear evidence that someone is not "possibly mentally ill" would amount to.

Then there is the provision that a responsible person is to be present at the interrogations. I do not quite know who that is intended to cover; whether it is intended that someone such as those who are entitled to sign passports—doctors, teachers, priests or lawyers—should be available. Whether any of those people would be available and would be willing to attend the interrogations seems to raise a matter of at least considerable doubt.

Then, in our view, the inclusion of the exception regarding corroborated evidence does not go far enough, particularly as regards the mentally ill. Then, in so far as we are dealing with a category of disadvantaged persons, the amendment does not deal with the specific problems of the young suspect; but that will perhaps come up for consideration when we reach Amendment No. 135.

I hope that I am not thought to be guilty of merely cribbing on this matter, of raising points of mere punctilio. I think the difficulties which arise from the draft are very substantial and I regret to say that my noble friends and I will be unable to support it.

Lord Denning

My Lords, in a way this raises a general point. The question whether confessions are to be admissible or not depends on all the circumstances of the case and whether the judge thinks that they are reliable or not. Within the code of practice, that is part of the circumstances of the case, and the suspect being informed of his right to silence is part of the circumstances of the case. Rather than put it down in specific rules, as this amendment seeks to do, and subject the judge to rules about the circumstances, it seems to me that all the circumstances can be taken into account and there is no need for this amendment.

Lord Allen of Abbeydale

My Lords, as the first non-lawyer to take part in these deliberations, which have now been going on for rather more than two hours, I rise with some diffidence. I hope I may be forgiven if my comments sound rather amateur. I am in some difficulty because I have down an amendment (Amendment No. 134) which concerns the interrogating of the mentally handicapped, and as the noble and learned Lord, Lord Elwyn-Jones, has pointed out, that amendment covers the same ground as Amendment No. 136. The last thing I want to do is to inflict the same speech on your Lordships twice. However, I feel I must say a few words in this context about paragraph (c) of Amendment No. 132, which is I think very crucial.

The noble and learned Lord, Lord Elwyn-Jones, has criticised some of the phraseology in paragraph (c). One can only plead in extenuation that, for the most part, it is taken from the code of practice on which we have been told we can place such great reliance. I wish to say just two things on the code of practice. First, it is completely silent—there is no doubt that it has a right to be—about confessions. Secondly, although it has been suggested that insufficient regard has been paid to Clause 66(7), I think that those of us who support amendments on these lines have throughout been very conscious of that provision. But personally I still feel that a provision in the statute which could have the result of the confession being excluded from the trial in consequence of the statutory provision itself is a much more effective deterrent to the police behaving improperly than is a provision that in certain circumstances what they have done can be taken into account.

We have not heard very much in previous discussions about the point I tried to make at Committee stage; namely, that here we are talking, with regard to the mentally ill and the mentally handicapped, about actual cases where there have been gross miscarriages of justice as a result of false confessions. I mentioned Devlin and Foster as well as the Confait case, which started it all off. Nor has anything been said about the tendency of the mentally handicapped, when being questioned, to give the answers that the interrogator seems to want.

I was sorry to learn from what the noble Lord, Lord Campbell of Alloway, said, that the noble and learned Lord the Lord Chancellor has already indicated he is not prepared to accept this amendment. Given the strong support that there was on Committee stage, about some special provision for the mentally handicapped, I hope that we might be given some indication as to whether there is any prospect of favourable attitudes being taken to either Amendment No. 134 or Amendment No. 136, if sub-paragraph (c) in Amendment No. 132 is not acceptable. Perhaps I may say here and now that I am not warmly attached to the drafting of No. 134 and would be content with any provision, provided that the principles were accepted. The noble and learned Lord the Lord Chancellor himself said at Committee stage that mental illness was among the considerations which raised a separate issue requiring separate consideration. Attempts have been made to persuade the Home Office to put something down showing the results of that special consideration, but perhaps that great department is not as open-minded and flexible as it used to be in days of old, and no progress was made. I am conscious that I have really gone on to talk about Amendments Nos. 134 and 136 but, given the provisions of subparagraph (c) in 132, I think it was unavoidable. I do hope that we may be given some indication that something will be done, at any rate about the mentally handicapped.

Lord Renton

My Lords, unaccustomed though I think your Lordships believe I am to throwing into my friends' faces the words which they have uttered recently, I hope that I may be forgiven if I start off by pointing out that on the previous amendment my noble and learned friend the Lord Chancellor said—I hope I took his words down correctly: the conviction of the innocent is such a terrible calamity that every possible safeguard should be available to prevent it from happening". Those are words with which we can all agree. And, as the noble Lord, Lord Allen of Abbeydale, has just pointed out, the present law has not prevented some calamities from happening, and tragic the results have been.

First, I must concede that people with mental disorders are generally satisfactorily dealt with by the courts, and the courts are familiar with the circumstances in which they come before them, generally speaking; but there have been these very hard cases, these very bad cases—a minority—in which, as has been said, there are tragic miscarriages of justice.

Surely it is agreed betwen us that something must be done: indeed I think that is inherent in what was said at Committee stage and by my noble and learned friend the Lord Chancellor when he said that treatment of the mentally handicapped is a separate issue. It is agreed that something must be done to prevent the recurrence of people making confessions to crimes they have not committed. There are two possible ways of securing that and I hope that your Lordships will forgive me if I am stating what in the context of this short debate is obvious.

Either we can write a safeguard into the Bill which is not in the present law, on the lines of one of these three amendments, Nos. 132, 134 or 136, or we can do as we are asked to do, which is to rely on the so-called safeguards contained in the codes of practice. Whichever course we adopt, as my noble and learned friend pointed out on the previous amendment, there will of course in most cases be a trial within a trial to enable the court to decide whether the confession should be admitted in evidence or excluded.

Having had, like many others among the lawyers in this House, a great deal of experience of trials within trials, I feel bound to express the view that the method of the code of practice would not be satisfactory. I say that because of the very wording of subsection (7) of Clause 66, on which the Government rely. I need not read it again: it has been referred to twice already this afternoon. But when courts, and especially magistrates' courts (which try most criminal cases), have to apply the formula in that rather difficult subsection, all that they are required to do is to take a failure to observe a code of practice "into account". Those are the operative words—"into account"—whatever that may mean or whatever result may arise. I do suggest that it is too vague and inconclusive and that it could sometimes cause confessions to be admitted as evidence which ought to be excluded.

The more specific provision in, for example, Amendment No. 134 would lead to a shorter trial within a trial and a clearer conclusion. May I say, I hope without disappointing my noble friend Lord Campbell of Alloway, to whom I am so grateful for all the effort he has put into this difficult question of how to treat the mentally handicapped, that I really prefer Amendment No. 134. And it has the great advantage, from the drafting point of view, of fitting more neatly and more succinctly into Clause 75 as it stands.

I want to deal with the point made by the noble and learned Lord. Lord Elwyn-Jones—to which in my opinion there is a good answer—about the expression "possibly" or "possibly may", which is used in Amendments Nos. 132 and 134. There is a very good reason for that. It has been done with the firm intention that we should use words which avoid a requirement that a police officer should have to reach a strict medical conclusion about mental illness or mental handicap. He is not qualified to do so. But surely, if it appears, or possibly appears, that someone is mentally ill or mentally handicapped, that should bring the safeguards into operation. That circumstance in itself should do so; hence the words in the amendment.

I hope, therefore, that the noble and learned Lord, Lord Elwyn-Jones. will think more kindly of it and indeed I hope that my noble and learned friend the Lord Chancellor may also do so. Surely it is much better that, where it appears possible that the person may be mentally ill or mentally handicapped. the officer should ensure that another responsible adult should be present, and that is all in essence that Amendment No. 134 would require.

With those relatively brief words in mind, I do appeal to my noble and learned friend, the Lord Chancellor, to whom we are deeply grateful for saying that he regarded the Committee stage as a separate issue, to tell us that he will further consider it as a separate issue and that those miscarriages of justice which have taken place in the past will be a thing of the past.

Lord Hutchinson of Lullington

My Lords, may I very briefly lend my support to this amendment? It is another amendment among a number which seek to ensure that when evidence of a confession or a submission is given it will be reliable, in so far as the law can make it so. With the greatest respect to the noble and learned Lord the Lord Chancellor. I would ask him again why these amendments cannot be supported. when surely all around the House there has been recognition that there have been a great number of miscarriages of justice because the rules have not been observed.

In echoing what has just been said by the noble Lord, Lord Renton, Clause 66(7) is woefully inadequate, because exactly the same thing has arisen under the Judges' Rules. The Judges' Rules may be breached, and you may bring in the fact that they have been breached. That has been done over and over again by advocates in relation to these miscarriages of justice. Yet the evidence has been allowed in, the jury has relied on it, and it is impossible to take any point to the Court of Appeal once the evidence has been admitted on that basis. Years later it is discovered that the confession should not have been allowed in at all in order to be considered, and it should not have been allowed in. and would not have been allowed in, if only a friend, a solicitor or someone else had been present to see that the right thing was done.

My only criticism of this amendment is that I am very much against the word "corroboration" being used in an Act of Parliament. It has given rise to innumerable technical difficulties, with a whole body of case law to support those difficulties. We have got into a state of confusion. That was pointed out in the Devlin Report and, as your Lordships may appreciate, the words "substantial evidence of another sort" were used there in order to avoid the word "corroboration", which is a term of art. I would much prefer to see here the words "supported by evidence" rather than "corroborated by evidence". Otherwise, I support the spirit of this amendment.

5.22 p.m.

The Lord Chancellor

My Lords, I am in considerable difficulty here because we have only one amendment before us. The first point I must make, both to the noble Lord, Lord Hutchinson, who supported it, and to others, is that this amendment forms one of a group which cannot really stand separately. There is one in the name of the noble and learned Lord, Lord Elwyn-Jones, which insists upon the suspect being informed of his right to representation or legal advice. There is one in the name of the noble Baroness. Lady Ewart-Biggs, which deals with juveniles. There are two or three which deal with mental illnesses or handicaps. This one groups together mental illness and handicap, but in a form different from Nos. 132 and 136—and I think there is another which I have misremembered—and groups them with a requirement not that the suspect should be informed of his right of legal advice, which is No. 137, but, first, that he should be informed of his right of silence; and, secondly, that he should have been afforded an opportunity of correcting a contemporaneous record of such interrogation at the time when it was made".

Apart from the technical criticisms which were made by the noble and learned Lord, Lord Elwyn-Jones, I do not think that it can be sensible—I do not want to lead people into false hopes; it may be that I cannot accept any of the amendments, but I am dealing with this particular amendment—first, to draw attention to the right of silence in it, to which I shall come in a moment in greater detail; secondly, to draw attention to the right, if it be a right, to correct a contemporaneous record; and, thirdly, to deal with the, to my mind, wholly separate question of mental incapacity and mental handicap.

I thought, with great respect to my noble friend Lord Renton, that he confined his remarks almost entirely to mental handicap or mental illness, when quite clearly, whatever else one thinks, they are to be dealt with separately, because the arguments are separate arguments and ought to be discussed separately, and should certainly not be grouped in a single clause in the form that this amendment seeks to do. I do not want to lead people on to think that I am going to accept what I may not be going to accept, but I suggest that if we are to get on—and I hope that we do get on—the right course would not be to push this amendment as far as a Division, so that we can discuss these rather different points separately.

But now may I deal with another general argument which my noble friend Lord Renton made and which I want to come back to from time to time in the sequence. He seemed to think that there were two alternative ways of dealing with the danger of a false confession; and we shall all be talking for some time yet about Clause 75. One was to put a safeguard, whatever it be, in the Bill, and the other was to put a safeguard, whatever it be, in the code of practice. He did not seem to think that there ought to be no code of practice, but he unfortunately used language which was quite unmistakably that of treating them as alternatives.

If I may refer back for a moment to the amendment from which we have come, another term crept into it; namely, guidelines. The view I want to put to the House, before I deploy an argument on the merits of these clauses, is that in fact they are not alternatives. Of course, we ought to put safeguards, whatever the right ones may be, into the Bill. Quite obviously, we want judges to have guidelines; and, with great respect, in my book of terminology—although I do not claim that it is always used in that sense—guidelines, although they have often been used in other senses, are best used in connection with the guidelines issued by an appellate court to judges of first instance.

You want codes of practice. They have to be used partly for the purposes of police discipline and partly in order that breaches of them can be drawn to the attention of the court of first instance for the purpose of seeing whether a confession, or whatever else is reliable, and, as one of the relevant circumstances of the case, of enabling the tribunal of fact to make up its mind. So a criticism of what my noble friend Lord Renton has said, if he will allow me to say so—I hope he will treat it as entirely friendly criticism—is that these are not alternatives of which you must choose one. If you want safeguards, you want a code of practice and you want guidelines as well. They collectively make the protection for the individual with which all of us. I suppose, but in our separate ways, want to surround a suspect when he is in the hands of the police.

I wish to make another point of a general kind about the amendment. The right of silence contained in the amendment depends upon the accused person being in detention, by which I suppose the noble Lord means, first, that he has been arrested and, secondly, that a charge has been levelled against him. According to the code of practice, the caution, which is when the right of silence is drawn to the attention of the suspect, is administered when the police officer has grounds for believing that that person has committed an offence—and, in any event, when arresting him. That is to say, the caution may often be delivered long before a person is arrested; namely, when he is being interrogated. Therefore I do not believe that this amendment would fulfil the purpose that is envisaged.

I shall, if I may, reserve what I have to say about juveniles for a later amendment. I see that the noble Baroness, Lady Ewart-Biggs, is sitting on the Front Bench. The noble Baroness is interested in both juveniles and the mentally handicapped. Therefore I shall also reserve what I have to say about the mentally handicapped for a later amendment. So far my criticism of this amendment has been held to have something in it.

I conclude by coming back to the protection which is provided in Clause 75. This is the crux of the matter. To some extent it is a rewrite of the common law, but I believe it to be an improvement on the common law because it gives greater protection than does the common law. Subsection (2) provides: 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"— which, I take it, means either by the accused person or by his counsel— that the confession was or may have been obtained

1. (a) by oppression of the person who made it; or
2. (b) 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". Under subsection (3) the court—I do not believe that it has had this power up to the moment— 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". Subsection (4) is irrelevant for this purpose.

The point which I am trying to make is that this is an all-embracing umbrella of protection which deals with every class of person. It applies to the mentally handicapped. Whether the mentally handicapped require anything else is a matter with which I shall deal separately when we come to the relevant amendments. It applies also to the juvenile. Therefore I say the same in respect of juveniles. The clause applies to those who are being interrogated without caution at the appropriate time and to any breach of the various codes of pratice, which, as I have already mentioned, run to some 61 pages. Even those codes of practice which are relevant to this subject run to very many pages and a number of different annexes.

Therefore I say that, for the reasons I have given, this amendment will not do. Secondly, the all-embracing protection of Clause 75 will stand in danger of being whittled down the more one tries to insert classes into it which, for some reason, seem to require special protection when the special protection which they require is already provided by the burden and standard of proof and by the reliability test in the trial within a trial.

I do not agree with my noble Lord Renton that the code of practice does not afford an additional protection. It goes into a great deal more detail as to what should or should not be done. It provides for a disciplinary sanction within the police disciplinary code. If this is to be built into the Bill, I do not see how it can be done except by the mechanism provided for in Clause 66(7). It is supplementary to the Bill but it is not designed to take the place of the Bill. It is designed so that where the reliability test or the oppressive test are applied the judge in the first place, at the trial within the trial, shall take into account what is said about breaches of it; and, secondly, so that the jury shall be told about it in order that they may decide whether to give weight or reliability to it.

There are many other points that I wish to make about these particular amendments, but I hope that I have persuaded both of my noble friends that this amendment ought to be withdrawn and that then we ought to deal one by one with the separate issues that are contained in the succeeding paragraphs. I couple what I say with a very great note of gratitude for the trouble which both my noble friends have taken in putting forward this amendment. I thank them also for all the trouble they have taken in order to try to arrive at a better understanding of the Bill in all its aspects. If I have criticised this amendment it is not because that gratitude is not uppermost in my mind.

Lord Campbell of Alloway

My Lords, I am very grateful to all noble Lords who have spoken in this debate, and in particular to my noble and learned friend the Lord Chancellor for his kind and sympathetic dismissal of the merits of this amendment, which makes it so much more pleasurable to bear. Seriously, my noble and learned friend the Lord Chancellor has, with his customary kindness, said that it is important for us to examine in particular the adequacy of the safeguards in the context of this type of confession. I take the point which my noble and learned friend has made about the grouping problem, which I sensed when moving Amendment No. 132 and referring to the other amendments. I accept that the amendment raises very serious practical problems. Therefore, I shall accept the suggestion which has been made that in those circumstances I assuredly should not press it.

May I, with leave, answer the point made by the noble and learned Lord, Lord Elwyn-Jones? His point on paragraph (c) was, with respect, answered by the noble Lord, Lord Allen of Abbeydale. I am informed that the drafting of this paragraph stemmed originally from what is nowadays universal police practice. It was an effort to put into the Bill what is practised by the police.

Lord Elwyn-Jones

My Lords, if the noble Lord is suggesting that this language is to be found in the code of practice, the code of practice refers to persons at risk, arrested juveniles, the mentally ill and the mentally handicapped. I mention that only for the sake of the record.

Lord Campbell of Alloway

My Lords, I am so grateful to the noble and learned Lord, but he misunderstands me. In fact, I quoted verbatim that passage of the code of practice when I was opening the amendment. I am aware of its existence; but this form of drafting relates to a wider practice that is put into effect by the police throughout the country. That is the way I am informed they approach it. Although, as I said, to some degree that is reflected in the code of practice, I did respectfully suggest that it was not adequately reflected.

With regard to paragraphs (a), (b) and (c), as the noble Lord, Lord Hutchinson of Lullington, appreciated, if there was a breach of (a), then without corroboration, exclusion; if there was a breach of (b), then without corroboration, exclusion; and similarly with (c). If there was a breach in the case of a mentally handicapped person of (a) or (b), then all the more exclusion, but exclusion. So that is how I seek to explain it. If it read rather awkwardly, then I can only apologise to your Lordships' House. I am not a draftsman, and I do not have any assistance, but that is what it is intended to mean. I should like particularly, if I may, to thank the noble Lord, Lord Hutchinson. He is quite right, and I take his point: it should be "supported" and not "corroborated", for the reasons he has given.

The final point is perhaps important because it is not so much to do with the telescoping of the other amendments as to keep the debate open for Amendment No. 134, which the noble Lord, Lord Renton, has said he prefers. One of the main objects in not pressing this amendment and not seeking any Division is so that your Lordships may give full consideration to confessions made by the mentally ill and the mentally handicapped without any hindrance of prior discussion. My Lords, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

5.42 p.m.

Lord Hutchinson of Lullington

moved Amendment No. 133: Page 68, line 28, 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: My Lords, this is a rather fundamental amendment. I will say at once that it is supported by my noble friend Lord Hooson, although his name has been omitted from the list. It was moved very shortly in Committee at a very late hour by my noble friend Lord Airedale, and the noble and learned Lord the Lord Chancellor then expressed himself somewhat puzzled by its terms. He considered it to be an alternative draft of the words which are already in Clause 75, subsection (2)(b). That is certainly not the case, and I was responsible for the drafting of this amendment with the chairman of the Criminal Bar Association, which supports it.

I shall spell out its purpose. As it stands at the moment, subsection (2)(b) has just been read out: that the court shall not allow the confession to be given in evidence unless the prosecution proves that it was not obtained in consequence of anything said or done which was likely to render unreliable the confession which might be made in consequence of those words or deeds. The very awkward wording has the phrase "in consequence" twice in that subsection. So the position is that the judge may say: "The prosecution have failed to prove to my satisfaction that the confession was made in that way". I am taking an actual case in which I was involved. The judge may say: "The evidence before me was that the suspect was told by the police that his wife was in the next-door cell, that she had made a confession about the matter, that she knew all about it and that she would be called as a witness in due course. 'Now come along', said the police, 'in those circumstances you had much better admit it'." The whole of that story was untrue, and the admission was made. The police had done something quite outrageous and quite wrong, of course, by inventing this story in order to obtain a confession. The man made his confession because he was terrified that his wife would either be charged or would be called as a witness against him, as he believed.

The judge would be able to say: "All that has been established; I accept all that. But in this case I think that this particular accused man has a number of previous convictions, he has been in a police station a number of times in his career, and he knew quite well what was going on. He saw the game was up, and I do not think for one moment he made this confession as a result"—in other words, in consequence—"of the outrageous things that happened". It will be open to a judge in all these cases, if he so wishes, to say: "Well, there was outrageous behaviour, unlawful behaviour, deceitful behaviour, wrong behaviour. Nevertheless, I think that in this case the confession was not made in consequence of it".

I would submit that it is most undesirable to have that in this statute. The amendment which I am moving here is that the court shall not allow the confession to be given in evidence unless the prosecution proves that it was not obtained in circumstances existing at the time which were likely to render it unreliable. In other words, what the judge will have to decide in each case is: were there circumstances here which were likely to render the confession unreliable? If there were such circumstances, then the confession is not going to be put before the jury; it will not be part of the evidence because there were circumstances which would be likely to make it unreliable.

I would have suggested, with great respect, that surely that is what we would all desire; and it is a situation which will prevent the miscarriages of justice about which we have heard so much. It would greatly shorten the trial within the trial, because all that would have to happen is a decision by the court: were these circumstances in existence? Have the prosecution shown that they were not in existence? If they were in existence, then in a criminal court in this country we do not allow in a confession because it was made in circumstances which were likely to make it unreliable. If it was, it is out.

That is the basis on which I move this amendment, and I am very much encourged by the words of the noble and learned Lord, Lord Denning, at the Committee stage of the Bill when speaking on 11th July at columm 919, when he said, in dealing with the confession clause, that the old test, came under considerable criticism and as a result of the recommendations of the Criminal Law Revision Committee we have this new test … 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". That is in fact precisely the result which this amendment would produce. That is precisely the situation if these words "in consequence" go and the words of the amendment are substituted. My Lords, I beg to move.

Lord Elystan-Morgan

My Lords, we on these Benches accept that the amendment undoubtedly is a clearer enunciation of the purpose of this part of the Bill than the wording of Clause 75(2)(b) at present. It is a clearer test of reliability. Therefore, I agree with everything that has been said by the noble Lord, Lord Hutchinson of Lullington. However, we on these Benches are extremely worried as to what exactly is the interpretation to be placed by the courts, when this matter becomes law, on the terminology "render unreliable".

That, no doubt, is the question that will occupy the minds of those who practise regularly in the criminal courts, as I do. The law as it now stands is fairly simple. A judge in a trial within a trial has of course to consider whether he is satisfied so as to be sure that the confession is a voluntary one. It will not be voluntary if it fails on any one of three counts. It will not be voluntary if there was the slightest taint of inducement. It will not be voluntary if there was the slightest taint of threat. And it will not be voluntary if there was the slightest taint of oppression—oppression in the sense of sapping the will of the accused person in the circumstances in which that person found himself when he made the confession.

But does "unreliable" mean much the same as that? or, in considering the question of unreliability, will a learned judge in future have to consider whether the confession is likely to be true? That is something that he has to expunge completely from his mind at the present moment. A confession may have been brought about by the most fundamental breaches of the code of practice. Will the judge regard that in itself as being unreliable? At the present moment, the Judges' Rules to a large extent cover at least part of the area that concerns us, but the Court of Appeal in the case of Mackintosh in 1983 was unwilling to say that substantial breaches of the Judges' Rules by themselves justify a learned judge—unless he was less than satisfied in relation to the issue of voluntariness—throwing out that statement and ruling it to be inadmissible.

Although the question raised in this amendment is one of very great importance, in my submission it cannot be determined unless the House has some guideline as to the likely interpretation to be placed upon those vital words. "render unreliable".

Lord Denning

My Lords, I first thought that this was a mere drafting amendment, but now that I have considered this point it seems to be very desirable that this aspect should be stressed as widely as my noble friend Lord Hutchinson has put it. One does not simply want to rely on anything said or done which was unreliable in the circumstances; one should rely on any circumstances existing at the time which were likely to render the confession unreliable.

This is not a mere drafting amendment. It is a positive amendment and and it has my support. However, I sympathise with the question which my noble friend Lord Elystan-Morgan has raised. We are having new case law altogether in our criminal law. It is not a question of whether the confession was voluntary but whether it is reliable. We do not have any guidelines on that. We shall have a whole body of case law before the judges are able to say what circumstances are to be regarded as rendering a confession unreliable.

Indeed, all the circumstances we have in relation to these various amendments—such as the mental state or the youth of the individual—will be part of the circumstances which the judge will have to consider when deciding whether or not the evidence is unreliable—probably on the trial within a trial. It is a test that is accepted now as a result of the Criminal Law Revision Committee but I can foresee—although it is probably not right to alter them now—that there will be a whole body of case law arising from those very words.

Lord Gifford

My Lords, I, too, believe that this is a very important amendment and one that should be supported. Most of the amendments in this batch focus on specific cases where particular protection may be necessary, and we will consider those in due course. But above and beyond that, we have to ask ourselves this question: have we got the basic test right? As the noble and learned Lord, Lord Denning, has said, it is a new test.

My noble friend Lord Elystan-Morgan focused on the difficulites in the word "unreliable". There are also difficulties in regard to the word "likely". Although the burden of proof is on the prosecution, the burden is on the prosecution to prove that the confession was not obtained in consequence of anything said or done which was likely to render the confession unreliable—not which "might", not circumstances in which a danger was present, but which was "likely". There is scope there for the judge to go wrong.

This particular amendment does not tackle that question but another very important point. The judge will have to be satisfied that the confession was obtained in consequence of the thing said or done which might render it likely to be unreliable. That involves the judge having to ask himself this hypothetical question: would the accused have confessed if the thing had not been said or done? In the very nature of the case, that hypothetical question is impossible to answer because we do not know what would have, happened if the thing had not been said or done. Therefore, there is a further reason for a judge, with the best will in the world and although applying his mind as seriously as he can to the question, to go wrong and to declare his belief that the accused would have confessed anyway, when in fact one cannot know that. The very purpose of this clause must be to prevent such circumstances, when perhaps the accused would not only have confessed anyway but where the confession itself was false.

5.57 p.m.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Hutchinson, for explaining the purpose of this amendment because not only I but those advising me, and apparently the noble and learned Lord, Lord Denning, were completely misled at the outset and thought it to be, and I quote, no more than an alternative draft of (b)". To the noble Lords, Lord Gifford and Lord Hutchinson, there is much to be said for the causal link which they have deliberately and intentionally omitted. To the noble Lord, Lord Gifford, in particular I will say that this has been present in the law at any rate since, I think it was, Lord Sumner's judgment in Ibrahim v. Rex in 1914 or thereabouts. It has not been found in practice, I think, to give rise to the difficulties over the past 70 years which one would otherwise have expected had there been much to the basic point.

The draft in the Bill was modelled on Clause 2 (2)(b) of the draft Bill prepared by the Criminal Law Revision Committee, I suppose on the advice of parliamentary counsel, in their report on evidence. The only change is that the words, any threat or inducement of a sort", are replaced by, anything said or done", which your Lordships will probably agree is both more plain and more wide-ranging. I think it has a clarity of particular value in an area of the law which has in the past proved complex and difficult.

I draw the noble Lord's attention, and the attention of the noble Lord, Lord Elystan-Morgan, to the fact that the phrase "likely to render unreliable" appears in both the alternative versions of paragraph (b). I do not think that it is particularly difficult for a judge to apply his mind to that, although the ultimate test of reliability, if the evidence is admitted, will rest with the jury.

I also draw the attention of the noble Lord, Lord Hutchinson of Lullington, to the fact that his amendment, as it was originally proposed in Committee, I think in identical terms, was put down before my Amendment No. 139 and I wonder whether he would not wish to reconsider his position on this amendment on the supposition that Amendment No. 139 may ultimately be passed, if we ever reach it.

Lord Hutchinson of Lullington

My Lords, all I should like to say in reply is to refer—and I hope your Lordships will remember this—to the words of Sir Harry Fisher, who carried out the inquiry as a result of which the Royal Commission was set up and who is the reason we are here. He said: It is better that a guilty person against whom there is insufficient independent evidence to justify a conviction should be acquitted than that he should be convicted on the evidence of an improperly or unfairly obtained confession". The purpose of this amendment is to try to ensure that that view is reflected in the Bill. I must say that I am a little disappointed with what the noble and learned Lord the Lord Chancellor said in reply to the amendment. However, having regard to the last words which he used in reference to Amendment No. 139, I am prepared not to take this to a Division, although I must say that I would be inclined to do so in the hope that what will happen is what the noble and learned Lord the Lord Chancellor does not himself hope; that perhaps Amendment No. 139 with the amendments will be carried. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor

My Lords, Amendment No. 134. I have a note to the effect that this amendment is grouped in some mysterious way with Amendments Nos. 136, 138A and 138B but that, of course, is a matter for the House to decide.

6.4 p.m.

Lord Allen of Abbeydale

moved Amendment No. 134: Page 68, line 31, at end insert— ("or (c) from him without the presence throughout his interrogation of his nearest available relative or some other responsible adult who is not a police officer, where it appears possible that he may be mentally ill or mentally handicapped or there is not clear evidence to the contrary.").

The noble Lord said: My Lords, when I was speaking to Amendment No. 132 and explained my views about paragraph (c) relating to the mentally ill and handicapped, I promised that I would not inflict the same speech on your Lordships again when we reached Amendment No. 134. I will not do so, and in any case at this stage a very short speech would not be altogether out of place.

We know of a number of cases in this area which have gone seriously wrong. There may well be other cases that we do not know about where miscarriages of justice have occurred. What I am seeking is to try to do everything possible to avoid a recurrence of those very bad cases. I feel that Clause 66(7) is too weak for this purpose, with its threat of disciplinary proceedings after the event and the power of the courts to take a breach of the code into account.

Whether Amendment No. 134 or No. 136 is the better way of doing it, I do not know. I prefer Amendment No. 134, but I have an open mind on it. What I do feel is that I have heard nothing so far to make me depart from the view that some provision is called for in the statute itself. I beg to move.

The Lord Chancellor

My Lords, the Question is, That Amendment No. 134 be agreed to. We are speaking to the other amendments if it is agreeable to the House.

Lord Renton

My Lords, it might be convenient if I were to say a brief word now, as it might be of help to the Opposition Front Bench. In view of what my noble and learned friend the Lord Chancellor said about the grouping of these amendments, may I respectfully point out that it would appear that the amendments to be grouped together were, and are, Amendments Nos. 132, 134 and 136, but no others with them—unless, of course, there is some remarkable mystery about Amendments Nos. 138A and 138B which does not appear on the surface.

The Lord Chancellor

My Lords, that was so, but I was told before I came to the Chamber this afternoon that it had been changed. God moves in a mysterious way and I am unable to explain in this case the inscrutable workings of Parliament or how this has been done. If the House prefers to limit it to Amendments Nos. 132 and 134, that was what I was orginally prepared to do. It is entirely a matter for the House. I was simply doing what I was told.

Lord Elwyn-Jones

My Lords, could not Amendment No. 136 also be conveniently added?

The Lord Chancellor

My Lords, I am entirely in the hands of the House, but I think a discussion on the mentally handicapped is what we want.

Lord Renton

My Lords, my views on this matter coincide exactly with those of the noble and learned Lord on the Woolsack. I implore the House to agree that these three amendments, Nos 132, 134 and 136 will be more conveniently taken together and not cluttered up with other notable amendments in the Marshalled List. Amendment No. 136: Page 68, line 40, at end insert— (" ( ) 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, at the time he made the confession, he was mentally ill or mentally handicapped, the court shall not allow the confession to be given in evidence unless the prosecution proves to the court beyond reasonable doubt either

1. (a) that, at the time the confession was made, the person making it was neither mentally ill not mentally handicapped; or
1. (b)(i) that the confession was made in the presence of an adult person who was not a police officer; and
2. (ii) the confession is supported in some material particular by other evidence.")

I should like to say that of these three amendments I, too, like the noble Lord, Lord Allen of Abbeydale, prefer Amendment No. 134. I prefer it, first and foremost, because it fits more naturally and succinctly into Clause 75 as it stands. It does so without impairing or derogating from subsection (3) of that clause, to which quite rightly my noble and learned friend the Lord Chancellor has referred as being of great importance and fairly comprehensive.

On the last amendment but one, my noble and learned friend was quite right in drawing attention to a mistake that I made by using the words "either/or" in reference to an amendment to Clause 75 and the use of codes of practice. I should not have done so. There would be obvious advantages in having both methods of correcting omissions in the present law. Indeed, one must concede that it is not unusual for codes of practice to repeat some of the words of the statutes which they purport to implement. I am grateful to my noble and learned friend, and perhaps we could have that understanding between us.

I repeat the plea to my noble and learned friend that he should, between now and October, consider further this difficult and separate question of preventing miscarriages of justice caused by mentally handicapped people confessing to crimes which they have not committed. In giving that further thought, I venture to suggest that he might find it useful to consider the advantage of having something on the lines of Amendment No. 134.

If I dare to repeat quickly a point that I made in answer to the noble and learned Lord, Lord Elwyn-Jones, it is this. Instead of being dogmatic and saying that the person must be mentally ill or mentally handicapped, all that is required to put everyone concerned on inquiry, especially the police officer, is to say "appears to be" or "may be". I beg to support the noble Lord, Lord Allen of Abbeydale.

Lord Elystan-Morgan

My Lords, in my respectful submission, one thing is abundantly clear in relation to the whole issue of mental illness. The House is aware that here is an area redolent with the possibility of miscarriage of justice. Very often such miscarriages of justice will occur even though there has been the greatest fairness and the greatest care taken by the investigating officers. They arise out of the very nature and characteristics of mental illness and mental handicap. It may well be that the gravest danger is not in relation to mental illness so much as to mental handicap, where it is more difficult for the investigating officer to come to a conclusion that a person is handicapped in that way.

Indeed, one comes across this so often in practice. There is something in the nature of many mentally subnormal people that makes them want to make a good impression on the investigating officer so that he does not even have to suggest a situation to them. It is in the light of that shattering manifestation of the obvious, if I may say so, that I should like for a moment to take up the point made by the noble and learned Lord the Lord Chancellor, that these situations can be dealt with by the operation of Clause 75 of the Bill.

In my submission the situation is utterly unsatisfactory, first, on account of what has already been said about the test of reliability. I am no nearer an understanding of what "reliability" means here. Does it mean reliable in relation to the truth of the statement, does it mean reliable in relation to the voluntariness of the statement, or is it a test which is different from both the truth and voluntary status of the statement, but perhaps includes one or both of these situations? I can imagine learned judges up and down the country inviting counsel to tell them by what test—what yardstick of measure—one is to consider what is reliable. The term begs the question: reliable according to what scale of consideration?

There is nothing that I can say that can take the matter beyond what has been so eloquently said by the noble and learned Lord, Lord Denning. But until the House has a clue as to what "reliable" means, the heart, core and kernel of the whole issue remains in very great doubt.

Secondly, even if we are able to have some light shed on the word "reliable", there will still be a problem. In my submission, Clause 75 deals with those situations where something has been said or done to the subject under consideration. There will be many cases which do not come within that category at all. I wonder whether I may briefly mention one such case which is reported in the law reports. It is the case of R. v. Stewart (1972).

Stewart was a young man who was brought in by the police and questioned about a case of arson in which he was suspected of having taken part. He made an immediate confession. The police acted with total propriety. He was a young man in his teens. There was a conflict between the two doctors who gave evidence for the defence. One said that he had a mental age of three-and-a-half and the other a mental age of five-and-a-half. The learned judge said that this was not at all an issue of voluntariness or oppression, because there was no question of threat, inducement or oppression. It was purely a question of whether there was any probative value to a confession made by a person whose mental age was somewhere between three-and-a-half and five-and-a-half. The learned judge came to the conclusion that such a confession could not possibly go before the jury, and, that being the only evidence against the accused, the matter was dismissed.

There are many such cases. In my submission Stewart's case would not come within the ambit of Clause 75. How then should Parliament deal with the Stewart cases? In the past Appendix B to the Judges' Rules has suggested that they should be dealt with as a special category. It is in the light of such a precedent that we say that they are cases so unusual, so different from the norm and so bristling with possibilities of injustice that the whole matter should be written into the Bill as a separate provision. It is on that basis that we say that Amendment No. 134, in the name of the noble Lord, Lord Allen of Abbeydale, or Amendment No. 136, in the name of my noble and learned friend and others, should be selected.

We think that Amendment No. 136 is somewhat superior because it has the further test of asking for outside independent evidence. That, I appreciate, raises a whole vista of different arguments. The House may feel that it is in itself a very considerable but nevertheless simple rule to operate and a very substantial safeguard for such persons as we are talking about.

Lord Denning

My Lords, may I say a word or two in favour of this amendment or of one of its kind. This follows on the rejection of the amendment of my noble friend Lord Hutchinson. He wanted to put the circumstances quite generally, whereas Clause 75(2)(b), as it stands, states: in consequence of anything said or done". That is a recollection of the old law: an inducement or a threat held out by a person, and so on. It is a recollection of that, and limits the provision to those circumstances. It does not cover the example that my noble friend Lord Elystan-Morgan gave of the case of Stewart, where nothing was said or done by the police officer, but really if only he had known what the position was—that he was too young or too feebleminded to be able to make a reliable statement!

We all know—and I suppose that especially the mothers here will know perfectly well—that you cannot rely on a word that youngsters of six, seven or 10 say. Very often it is in their imagination that things happen and children then say them. You cannot rely on the word of youngsters of that kind. That is equally true of those who are mentally afflicted. Those cases are not covered by the present clause, because the provision is: in consequence of anything said or done", by the officer, or whoever it may be.

The amendment of my noble friend Lord Hutchinson would have brought in the general circumstances, but that now is out. As that is out, after paragraph (b) we need something in the nature of paragraph (c) in Amendment No. 134. If it appears possible—and I suppose that the police officer ought to be able to judge that—that the person involved is too young or mentally infirm, he ought to say to himself, "Look here, ought he not to have a parent or a friend or someone else with him to stand by him to see that everything is all right?" It seems to me that something in the nature of these amendments is very desirable. The provision should not be limited to Clause 75(2)(b), which is, "anything said or done". It ought to be in the general circumstances of the case.

Lord Elwyn-Jones

My Lords, if I may without impertinence, I briefly intervene to remind your Lordships that we have taken over three hours to deal with three amendments. My noble friends and I in regard to the present amendments propose to support Amendment No. 134.

Lord Hooson

My Lords, I wish simply to say that the noble and learned Lord the Lord Chancellor is almost certainly right in stating that the kind of situation envisaged by these amendments will almost certainly be met by the general provision in Clause 75, and can be met generally there.

However, on the other hand, it is not certain that the circumstances must be met by the provision. It seems to me that the case has been made out for a special provision for those who might be mentally ill or mentally handicapped. I think the noble Lord, Lord Renton, has absolutely made out his case and from these Benches we would support the appropriate amendment.

6.21 p.m.

The Lord Chancellor

My Lords, I stand absolutely by what I said on Committee, namely that the question of mental stability, handicap or illness is a separate issue whether you deal with it generally in relation to interrogation or whether you deal with it specifically, as does Clause 75, in relation to confessions, which is what we are actually talking about on these two amendments. I think Amendment No. 136 would include juveniles. I may be wrong about that but at any rate there are amendments to be discussed in relation to juveniles. No, I am wrong about that. I apologise.

However, if I may start with a pedantic point, the amendment in the name of the noble Lord, Lord Allen of Abbeydale, gives me some cause both for concern and for confusion. I shall read from the amendment only the last three lines of paragraph (c). It says: where it appears possible that he may be mentally ill or mentally handicapped or there is not clear evidence to the contrary". How can it be, if there is clear evidence to the contrary, that he may be mentally ill or mentally handicapped? Also how can there be clear evidence in relation to any case, when a man is under interrogation, that he is sane? I should not like to undergo that test myself, although it would be to my advantage because anything I might say would be excluded under the amendment of the noble Lord, Lord Allen of Abbeydale, taken rather literally, if I was not able to produce clear evidence to the contrary of my being mentally unstable!

However, there are various things which I want to say in relation to this. I mean to resist these amendments, but I am not resisting them without sympathy or without promising to draw the attention of my right honourable and learned friend the Home Secretary to what has been said in the course of them, because they are important matters. I think that we have to deal with mental instability in some fashion, whether as in the existing draft or as in some other draft that may be thought up, or in one of these two alternative ways. It is quite right that my noble friend Lord Renton and other speakers should ask that we give separate consideration to this particular possibility.

The first point that I want to make to the House is that in relation to a possibly unstable person, especially a young one, one must have regard to his interests altogether apart from the reliability of his confession. I think this has been rather left out of the discussion.

I want to give two examples, one from the code of practice and one from the case of Straffen. Your Lordships remember Straffen. He attacked and killed small girls. He was undoubtedly in some sense a mental case, although I cannot remember in what sense. There was not a direct sexual motive in what he did. He did it more than once after having been more than once at liberty. I do not think one can quite approach that kind of situation in the way in which one would approach a confession by a perfectly normal person. I do not know that it would be either in the interests of society or the interests of the person who was under suspicion that he should be treated quite the same as the suspect charged with an ordinary rape, an ordinary murder or an ordinary act of dishonesty. I put that into the mind of the House as something which has not yet been mentioned but which ought to be.

I now turn to the code of practice, to which I do not think adequate respect has been given, even in its present form, by some of the speakers. To paragraph 13 in the code of practice, which deals with the relevant part, there is an Annex C called "urgent interviews". Annex C says: If and only if an officer of the rank of superintendent or above considers that delay will involve an immediate risk of harm to persons or serious loss of or damage to property …an arrested juvenile or a person who is mentally ill or mentally handicapped may be interviewed in the absence of the appropriate adult".

Neither of these amendments, at any rate in their present form, makes any allowance for the possibility that there may not be the appropriate adult available at the moment when the suspect is under interrogation or interview and that there may, if the interview is delayed, be a risk to life or limb or even to property (because some of these people are conceivably guilty of arson and other damage which may endanger life).

With respect, I do not think it is quite good enough for my noble friend to say, "The code of practice is not a sufficient safeguard for the suspect. There must be a safeguard automatically and completely excluding the interview taking place or being given in evidence", when the interview takes place in circumstances in which, if it is not carried out because of the question of the presence of the appropriate adult, there may be risk to life, property or limb. I think that we have to take that possibility seriously. I see the noble Lord rising.

Lord Gifford

My Lords, is not the answer to the noble and learned Lord's point that there would be nothing to prevent the interview taking place in those circumstances but we should want to stop the content of it being given in evidence when the person being interviewed was of such a character?

The Lord Chancellor

My Lords, I am not quite sure that I see the purpose of that, partly for the reason that I have already given and partly because what we are obviously considering, in the light of Clause 75, is a true confession made in those circumstances. The police have acted perfectly properly, a true confession has been made and the noble Lord, Lord Gifford, says, "We are concerned to see it is not given in evidence". I wonder why. The general umbrella protection is there—and I note the point that the noble Lord, Lord Elystan-Morgan, made again in this connection—that if it is unreliable it has to be excluded. But if it is reliable, true and made perfectly properly in the circumstances which I have described, I am not sure that I quite understand the noble Lord, Lord Gifford's point—or I do understand it but I am not sure that I quite agree with it.

Lord Gifford

My Lords, if I may question the noble and learned Lord again, is he not begging the question? One does not know whether the confession is true, and that is why we have to take such care.

The Lord Chancellor

My Lords, I disagree profoundly. The clause clearly says that if it is unreliable, it is automatically excluded under the clause. The question that we have to consider is the case of a conceivably mentally handicapped person who is interviewed perfectly properly by the police and makes a full and absolute confession. I ask the House whether it is really in the interests of society, of truth and of justice that, with this safeguard in the Bill and these provisions in the code of practice, such a confession should not be given in evidence. After all, one has occasionally to think of those who are killed by these mentally handicapped people. One has occasionally to think of their true interests which may not lie in being let out at large to commit another offence. I believe that the noble Lord, Lord Gifford, is taking a pedantic and wholly perverse view in both the interruptions he has made.

In any event, all that I wanted to say to my noble friend Lord Renton, who argued his case with great persuasiveness, is that I should rather not accept these amendments today. We have a Third Reading to come. I do not like Third Reading amendments, but I accept that the question of those who are conceivably mentally handicapped might require different treatment from that in the code of practice or in the existing draft of the Bill. I am very reluctant on behalf of my right honourable friend (I know what is his thinking about this) to admit into Clause 75 special classes of—may I use the word not in a pejorative or prejudiced way—"privileged" suspects who are given special treatment. I know that he wants me to resist this. That is the only attitude that I can take today. I do, however, want the matter to be carefully and sympathetically considered. The noble Baroness, Lady Ewart-Biggs, has not talked about juveniles, who again represent a slightly different class, but I would be saying almost exactly the same things in relation to juveniles as I have been saying in relation to the mentally handicapped.

I want also to raise another point—I do not think that it is purely a drafting point—in relation to the difficulties of putting into the clause something about the mentally ill. I mentioned it privately to my noble friend Lord Renton when he came to see me, but I think that I should put it to the House now. I think that I understand what is meant by "mentally handicapped". I think that there are statutory definitions that make it sufficiently precise to be inserted into a statute. I am a little more uneasy about the expression "mentally ill".

I could quite understand if the phrase (to use an old-fashioned and now obsolete one) was "certifiably insane", but I can see in the trial within the trial, counsel for the defence raising the question, "My client was mentally ill at the time. Of course, he is perfectly sane today. He was sane, too, five hours before the interview took place. But in that interval he had discovered terrible news about his wife, or something, which had made him mentally ill at the time".

We have to look at the meaning of mental illness for the purpose of creating this privileged class, if that is what we are going to do, a little more carefully than it has been done in this debate. I have resisted the amendment. I have given reasons for doing so, but I have not shut the door or, at any rate, I have not locked it. We have another occasion to come back to this. I should not complain if my noble friend or the noble Lord, Lord Allen—I am so sorry that I have been neglecting him for some time—came back to it. but I have not made any promise, except that I shall report carefully to my right honourable friend what has been said.

Lord Allen of Abbeydale

My Lords, on the basis of the assurance that the door is not shut and certainly not locked, I think that we cannot pursue this matter further today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.35 p.m.

Baroness Ewart-Biggs

moved Amendment No. 135: Page 68, line 40, at end insert— ("( ) If, in any proceedings, the prosecution proposes to give in evidence a confession made by a child or young person, the court shall not allow the confession to be given in evidence unless the prosecution proves to the court beyond reasonable doubt either—

1. (a) that the confession was made in the presence of an adult relative or another adult person responsible for the custody or care of the child or young person; or
2. (b) that the child or young person did not wish such relative or person responsible for his custody or care to be present, and that the confession was made in the presence of some other adult person who was not a police officer.").

The noble Baroness said: My Lords, I am sorry that the noble and learned Lord the Lord Chancellor has already intimated that he will not be saying anything different in response to this amendment than he said in relation to those concerning the mentally handicapped. Although we believe that young people and the mentally ill constitute the groups which are most vulnerable to the risk of making false confessions, it seems right to treat the two groups separately. I should have thought that the noble and learned Lord would treat this amendment separately.

Its purpose, once again, is to encourage the police to question young people (children) in the presence of an independent adult. We have tried at different stages of the Bill to include this important safeguard. Each time, unfortunately, the Minister has maintained that it would be wrong to place an absolute prohibition on questioning a juvenile in the absence of an adult, and he has given his reasons. We have therefore chosen the formula contained in this amendment which allows the police to question a juvenile prior to the arrival of an adult, but disallows what that juvenile says, if it amounts to a confession, to be used in evidence against that young person. This would seem to counter the objection that a police officer should not leave a young person in total silence, once in the police station, until a grown-up can be found because this might take some time. The police officer is able, and allowed, to speak to the young suspect while waiting for an adult to be present, but the police would have to repeat the question and ask the young person to repeat the statement if they want to introduce an oral confession or written statement in evidence.

One cannot view too highly the danger of a young person making a false confession. This has been stated throughout the debate in other cases. Surely, it must apply to young people, too. A false confession seems a very likely risk. After all, one has only to think of a young person in the isolation of a police station, questioned by very skilled officers who will now have the extra lever of saying that they can keep the young person for 96 hours. There will therefore be lots of time to pressurise the young person to speak.

I should like to quote, briefly, a research study commissioned by the Royal Commission on Criminal Procedure, which found that, There was a strong association between the age of the defendant and the tendency to make a written or verbal confession. The younger the defendant, the more likely he was to confess". That was a serious finding. Surely, it is a strong pointer to the importance of the safeguards provided by our amendment. I feel that it is the minimum safeguard necessary to ensure that any statement made by a young person and used in evidence is a true one and is not words either put in his or her mouth or made up by him or her to get a speedy release.

I would ask the noble and learned Lord the Lord Chancellor to look separately at this amendment. It is the last in a long line of amendments that we have put forward to try to ensure what seems reasonable to us—the presence of an adult when a young person is under investigation and when his own security is very much at risk. I beg to move.

Lord McCluskey

My Lords, to save the noble and learned Lord the Lord Chancellor rising too hastily to his feet, may I say something about this? As the noble and learned Lord has just indicated that he is going to give virtually the same reply to this amendment as he gave to the previous one—namely, that he will draw the importance of the matter to the attention of his right honourable friend—I should like to ask him to widen that reference when he does so. I say that because increasingly, as I look at these amendments, including this one, which employs the concept of proof to the court beyond reasonable doubt (which of course echoes the words of the clause itself; and similar words are used in subsection (2)), when I see the word "unreliable" which has caught the attention of my noble friend Lord Elystan-Morgan, and when I hear the noble and learned Lord the Lord Chancellor talking about the possible truth of the confession, I detect in this clause a complete and utter confusion which is the cause of much of the problem and could be the root of a great deal of evil unless it is looked at properly.

It confuses the question of admissibility, which is a question of law for a judge to decide, with questions of proof, reliability and reasonable doubt, which are questions for juries to decide. It is a mistake for a judge to approach questions of a confession on the basis that it may be true or that it may be reliable; or, indeed, that the prosecution should have to prove, at the stage of a trial within the trial, something beyond reasonable doubt. Unless the noble and learned Lord the Lord Chancellor looks closely at this question, I fear that whether or not these amendments are allowed, or whether or not some re-hash of them is introduced at a later stage, what is being built up for the English law of evidence is a terrible future of confusion, and it will rue the day when the clause was passed in this or any similar form.

The Lord Chancellor

My Lords, if I may start at the reverse end, I should like to say that I am grateful to the noble and learned Lord, Lord McCluskey, for reminding me (though he did not do so directly) that I failed to redeem a promise to the noble Lord, Lord Elystan-Morgan, when he asked me the meaning of the word "reliable". Of course, what I say speaking from this particular position carries no more weight than that of any other Member of the House, but by "reliability" I understand, basically, truth, but, of course, truth in relation to the circumstances in which the confession was obtained and truth in relation to the due performance of the code of practice. I understand it basically as being a statement that, in so far as it implicates the accused, the confession is likely to be true.

I agree with the noble and learned Lord, Lord McCluskey, because in fact he said what I had said earlier on in the afternoon: that my direct approach to the questions of evidence, confessions and questions of fact generally is that, in the end, questions of fact are for the jury and questions of law must remain the exclusive province of the judge. But I do not myself take on board the criticism which by implication the noble and learned Lord made from the point of view of a Scots lawyer. I do not think that in practice it is wrong to have a trial within a trial in the limited field where I have admitted it to be an evil but a necessary evil. Nor do I think that the question of truth or falsity and the burden of proof and the standard of proof can be avoided by the judge when he takes the voir dire, or the trial within a trial, because he becomes for that purpose the judge of fact and the only judge of fact; and in practice I know of no other way out within the confines of English jurisprudence. It may be that the Scots have thought of a better way, but I do not think that it is wrong.

If one is going to go down this road—and I have already accepted that for the purposes of confessions there is no way out of going down this road—I do not think that it is wrong for the judge of law to become for that limited purpose the judge of fact as long as it is clearly understood that the ultimate question of fact is for the decision of the jury, whatever the judge decides if he admits the evidence. The whole of the argument against reliability can be resurrected, and in my experience usually is resurrected, in front of the jury after the judge has said that he is satisfied beyond reasonable doubt. Perhaps it is difficult for him to conceal his opinion, but that is his duty, and it is for the jury to decide.

As regards juveniles, I accept of course and at once that one has to deal with them as a separate group of people—separate, that is, from the mentally handicapped, who we were discussing a moment or two ago, and separate from the adult offender or suspect. But there are some analogous arguments that apply to juveniles. I quite agree with the noble Baroness, Lady Ewart-Biggs, that they are more suggestible than adults. They are also less experienced and more likely to blurt out the truth. That is also a factor.

The code of practice is very strong in what it says, and I think I must here draw attention to the fact that the code of practice is in some ways stronger than the amendment because it really does insist that not only must there be a responsible adult present but that if possible it should be the parent of the suspect or his guardian. The code of practice says: An arrested juvenile … must not be interviewed in the absence of the appropriate adult unless Annex C applies". I will come to Annex C in a moment. 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 of this code apply". Paragraph 13.3 says: 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". Then, in the notes for guidance: Where the parents or guardians of a person at risk are themselves suspected of involvement in the offence concerned, or are the victims of it"— which is something we must really think about in this connection; we must think about both of these sets of circumstances— it may be desirable for the appropriate adult to be some other person". Paragraph 13B says: All these special groups"— of course, that includes the mentally handicapped— may be particularly open to suggestion, and it is important to obtain corroboration"— or facts supporting, I suppose one could say— of any facts admitted wherever possible". Paragraph 13C says: 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". Annex C says that an arrested juvenile may be interviewed in the absence of the appropriate adult: If and only if an officer of the rank of superintendent or above considers that delay will involve an immediate risk of harm to persons or serious loss of or damage to property.

Unfortunately, one has to envisage situations in which an appropriate adult may not be available and in which there is an immediate risk to life or of damage to property. Although I heard what the noble Lord, Lord Gifford, said when I was talking about the mentally handicapped—that he was not concerned to prevent an interview but only to prevent the ex hypothesi reliable confession being given in evidence—I am still of the opinion that when one is dealing with juveniles a great deal depends on the age of the juvenile and a great deal depends upon the circumstances of the case. I should not myself like to have an automatic exclusionary rule which prevented the truth being known to the court of trial.

It is, I have no doubt, genuinely and wholly laudably in the interests, or the supposed interests, of the juvenile that this amendment has been proposed by the noble Baroness. I think that there are arguments on both sides in the case of juveniles. There are the interests of the juvenile himself and the interests of society itself in the case of an ex hypothesi reliable confession where there has been no impropriety on the part of the police when the code is buttressed by Clause 66(7) of the Bill. I would like to say exactly the same thing, therefore, as I said in relation to the mentally handicapped a few moments ago. I shall not bang the door, but I was instructed and advised by my right honourable friend to resist this amendment, which I do; but I shall take back to my right honourable friend in return the arguments which have been put forward, because I do not wish to appear either dogmatic or unyielding. But I do not make any promises as to what the result will be.

Baroness Ewart-Biggs

My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for his answer. I still do not think that he met the point that we were trying to make in this amendment; namely, that there is no doubt that when waiting for an adult to arrive at the police station, the police very often do interrogate the child, and the child can be 10 years old. It is during the early stages of questioning that a child would be most likely to say something. It was to prevent the risk of a child making a confession during that early period before the grown-up came that this amendment was put forward.

There is no doubt that there is a great deal of truth in the suggestion of the police talking to children the minute they have them in custody and while they are waiting for the adult. Therefore, I should have thought that this amendment was truly to protect young people and children. I am very disappointed that yet again the noble and learned Lord the Lord Chancellor has rejected it. We have decided not to divide the House, but we would like to think about the matter again and possibly come back with yet something else at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones

moved Amendment No. 136:

[Printed earlier: col. 691.]

The noble and learned Lord said: My Lords, we have discussed this amendment at some length and it is a matter of great concern. The separate problems and the special position of the mentally ill and the mentally handicapped have been ventilated many times. I venture to submit that overwhelming opinion, as expressed in the House, has favoured special provision for them. But the noble and learned Lord has given an assurance. How far it went was not totally reassuring, because he said that the door was not locked, and that does not conjure up great confidence. The noble and learned Lord did not even say that the door was ajar. However, if he can perhaps be persuaded to say that much, then I do not think that I shall press the amendment. I wonder if I can tease a little more out of him? I beg to move.

The Lord Chancellor

No, my Lords, I think that I have probably already gone further than my instructions permitted. I am sorry.

Lord Elwyn-Jones

My Lords, I am greatly tempted but we have discussed the matter thoroughly. We will undoubtedly bring it back again come October, come the fall, come the falling leaves that are waiting for us all. We shall be there ready for action and next time we hope that the door will be open or that there will be a successful Division. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon

moved Amendment No. 137: Page 68, line 40, at end insert— ("( ) A court shall not allow a confession to be given in evidence against an accused person where

1. (a) he has made a request to consult a solicitor under section 57 above; and
2. (b) delay in compliance with that request was authorised under subsection (5) of that section

unless the confession is supported by other evidence."). The noble Lord said: My Lords, if I may modestly say so, I am endeavouring to set an example and to move an amendment which I regard as extremely important within the strict limits of two minutes. This amendment requires the prosecution to corroborate any confession obtained after a suspect has been held in police detention and access to a solicitor has been delayed under Clause 57(5). Let me remind your Lordships of what subsection (5) says: Delay in compliance with a request is only permitted—

1. (a) in the case of a person who is in police detention for a serious arrestable offence; and
2. (b) if an officer of at least the rank of superintendent authorises it".

The presence of the solicitor is designed in protection against the alleged verbal confession which the accused disputes as false. If the police wish to adduce such confessions after delaying access to a solicitor under subsection (5), all that they will have to do is to put the confession to the accused when his solicitor is present or they will have to find other evidence to support it before the confession can be admitted as evidence against the accused. I have succeeded in moving this amendment in one minute and not two. I beg to move.

The Lord Chancellor

My Lords, I do congratulate the noble Lord on his succinctness and on the persuasive way in which he has moved the amendment. I cannot offer the noble Lord a great deal of hope as regards this amendment. It is of course another amendment designed to identify as vulnerable a particular group on the grounds that they have made a request to consult a solicitor under Clause 57 and delay in compliance was authorised by subsection (5)—that is to say, was perfectly properly obtained—unless the confession is supported by other evidence.

I personally am glad that the word "corroboration" has not been imported into the amendment. But I do not know that there is anything particularly praiseworthy about those from whom confessions have been obtained in a proper manner and who are ex hypothesi adult, of sound mind and whose confessions are reliable and get through the umbrella protection of Clause 75. I clearly urge the House to consider that this is to weaken the protection of Clause 75 for other conceivable categories, and it would be a mistake to import it into the Bill.

Lord Mishcon

My Lords, to say that I am disappointed as a result of my brevity is an understatement. I make but two comments and again I make them very rapidly. The first is that your Lordships will appreciate that these provisions of the Bill come into effect before there is any question of universal tape-recording of interviews. Your Lordships will also realise that I gave the strict alternative, very clearly I hope, that all that the police would have to do is to repeat the confession which they have said they have obtained, in front of a solicitor when he arrived after the delay; and if that was repeated and the accused admitted that that was his confession, then of course it would be admissible. What other safeguards can the noble and learned Lord want? I feel that your Lordships' opinion on this vital matter, certainly to my profession, should be put to the vote.

7 p.m.

On Question, Whether the said amendment (No. 137) shall be agreed to?

Their Lordships divided: Contents, 86; Not-Contents, 107.

DIVISION NO. 2
CONTENTS
Airedale, L.	Barnett, L.
Amherst, E.	Beaumont of Whitley, L.
Ardwick, L.	Bernstein, L.
Attlee, E.	Birk, B.
Aylestone, L.	Boston of Faversham, L.
Banks, L.	Bottomley, L.

Brooks of Tremorfa, L.	McNair, L.
Buckmaster, V.	Masham of Ilton, B.
Carmichael of Kelvingrove, L.	Milner of Leeds, L.
Cledwyn of Penrhos, L.	Mishcon, L.
Collison, L.	Molloy, L.
David, B.	Monson, L.
Dean of Beswick, L.	Mountevans, L.
Diamond, L.	Mulley, L.
Donaldson of Kingsbridge, L.	Nicol, B.
Elwyn-Jones, L.	Oram, L.
Elystan-Morgan, L.	Paget of Northampton, L.
Ennals, L.	Pitt of Hampstead, L.
Ewart-Biggs, B.	Plant, L.
Gallacher, L.	Ponsonby of Shulbrede, L.
Galpern, L.	[Teller.]
Gifford, L.	Rea, L.
Graham of Edmonton, L.	Rochester, L.
Gregson, L.	Stallard, L.
Hampton, L.	Stedman, B.
Hatch of Lusby, L.	Stewart of Alvechurch, B.
Hooson, L.	Stewart of Fulham, L.
Houghton of Sowerby, L.	Stoddart of Swindon, L.
Howie of Troon, L.	Stone, L.
Hutchinson of Lullington, L.	Strabolgi, L.
Hylton, L.	Taylor of Blackburn, L.
Irving of Dartford, L.	Taylor of Gryfe, L.
Jacques, L.	Taylor of Mansfield, L.
Jeger, B.	Tordoff, L.
John-Mackie, L. [Teller.]	Underhill, L.
Kagan, L.	Wallace of Coslany, L.
Kilmarnock, L.	Whaddon, L.
Kirkhill, L.	White, B.
Llewelyn-Davies of Hastoe, E	Wigoder, L.
Longford, E.	Willis, L.
Lovell-Davis, L.	Wilson of Rievaulx, L.
McCluskey, L.	Winstanley, L.
McIntosh of Haringey, L.	Wootton of Abinger, B.
Mackie of Benshie, L.

NOT-CONTENTS
Airey of Abingdon, B.	Gardner of Parkes, B.
Allerton, L.	Gibson-Watt, L.
Alport, L.	Gisborough, L.
Auckland, L.	Glanusk, L.
Avon, E.	Glenarthur, L.
Bauer, L.	Greenway, L.
Bellwin, L.	Hailsham of Saint
Beloff, L.	Marylebone, L.
Belstead, L.	Harmar-Nicholls, L.
Bessborough, E.	Henley, L.
Bethell, L.	Holderness, L.
Blake, L.	Hood, V.
Boardman, L.	Hylton-Foster, B.
Brabazon of Tara, L.	Inglewood, L.
Brougham and Vaux, L.	Ironside, L.
Broxbourne, L.	Killearn, L.
Caithness, E.	Kilmany, L.
Cameron of Lochbroom, L.	Kitchener, E.
Campbell of Alloway, L.	Lane-Fox, B.
Campbell of Croy, L.	Lawrence, L.
Carnock, L.	Lindsey and Abingdon, E.
Cathcart, E.	Long, V.
Chelmer, L.	Lucas of Chilworth, L,
Chelwood, L.	McAlpine of Moffat, L.
Cockfield, L.	McFadzean, L.
Coleraine, L.	MacLehose of Beoch, L.
Colwyn, L.	Macleod of Borve, B.
Cork and Orrery, E.	Margadale, L.
Craigavon, V.	Marshall of Leeds, L.
Daventry, V.	Massereene and Ferrard, V.
Denham, L. [Teller.]	Maude of Stratford-upon-
Denning, L.	Avon, L.
Digby, L.	Merrivale, L.
Dilhorne, V.	Milverton, L.
Eccles, V.	Molson, L.
Eden of Winton, L.	Monk Bretton, L.
Elles, B.	Mottistone, L.
Elton, L.	Moyne, L.
Ferrier, L.	Napier and Ettrick, L.
Gainford, L.	Newall, L.

Norfolk, D.	Stanley of Alderley, L.
Orkney, E.	Stodart of Leaston, L.
Peel, E.	Suffield, L.
Pender, L.	Swinton, E. [Teller.]
Plummer of St. Marylebone,	Teviot, L.
L.	Thomas of Swynnerton, L.
Polwarth, L.	Tranmire, L.
Rankeillour, L.	Trefgarne, L.
Renton, L.	Trumpington, B.
Renwick, L.	Vaux of Harrowden, L.
Rochdale, V.	Vivian, L.
Romney, E.	Whitelaw, V.
Shannon, E.	Windlesham, L.
Skelmersdale, L.	Wynford, L.
Stamp, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.9 p.m.

The Lord Chancellor

moved Amendment No. 137A: Page 68, line 41, leave out subsection (4).

The noble and learned Lord said: My Lords, this amendment arises out of an exchange which took place between the noble Lord, Lord Wigoder, and myself on Committee. He asked me the effect of subsection (4) of Clause 75. I replied (and I am not quoting my exact words) that I thought it meant that if a confession was admitted, the whole of it was admitted including matters favourable to the accused, but that it did not alter the rule of law to the effect that, where a statement had been made in the absence of a co-defendant, it was not therefore to be taken as evidence against the co-defendant in any ordinary circumstances, unless it was part of a conspiracy.

I still think that that is the true view of subsection (4), but I am told that it was intended to mean something different by those who originally framed it. It was intended to make it available as evidence against the co-accused without any more ado. Of course there are certain circumstances in the course of a trial when on any view of the existing law it would so become. Having found that out, I think that the noble Lord, Lord Wigoder, was right to object, and so I am now asking the House to omit subsection (4) as a result of this piece of investigation. I beg to move.

Lord Wigoder

My Lords, it would be perverse of me in those circumstances to oppose this amendment, and of course I do not do so for one moment. I am glad to hear from the noble and learned Lord on the Woolsack that the existing rule of law as to the situation where one defendant refers to another defendant in the course of his statement to the police is now not going to be affected in any way by this Bill. I think that that is a most welcome improvement on the Bill as originally drafted.

I tabled an alternative to this amendment, which is Amendment No. 138. Amendment No. 138: Page 68, line 42, after ("admissible") insert ("in the case of the maker of the statement").

I think that this amendment will now be sunk without trace if Amendment 137A is accepted, but I shall allow it to go with good grace. The abandoning of subsection (4) is by far the happiest way of dealing with this problem, and I am grateful to the noble and learned Lord for the consideration he has given to the matter.

On Question, amendment agreed to.

[Amendment No. 138 not moved.]

The Lord Chancellor

moved Amendment No. 138B: Page 69, line 10, leave out from beginning to ("was") in line 12 and insert— (" (6) Evidence that a fact to which this subsection applies").

The noble and learned Lord said: My Lords, my brief has got out of phase. This is a Government amendment, and I believe it to be drafting. Perhaps the House will allow it to go through. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor

moved Amendment No. 138B: Page 69, line 14, at end insert— (" (6A) Subsection (6) above applies—

1. (a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
2. (b) to any fact dicovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.").

The noble and learned Lord said: My Lords, I think the same is true of Amendment No. 138B. It is drafting. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor

had given notice of his intention to move Amendment No. 139:

[Printed earlier: col. 428.]

The noble and learned Lord said: My Lords, this amendment I am going to move, and I hope that it will be passed.

Lord mishcon

My Lords, I wonder whether the noble and learned Lord will allow me to raise a point of order? I do it, as he will know, most respectfully, but he is at this moment the guardian of the order of the House. I would refer him to our Companion to the Standing Orders, and I am looking at page 89, Standing Order No. 36. Amendments proposed during the course of Committee or any other stage must not be inconsistent with a decision already taken at that stage. This is the Report stage and we took Amendment No. 131 and that was passed. That amendment dealt with evidence proposed to be given by the prosecution and laid down rules in regard to evidence which might be improperly obtained. That covered all matters other than confessions.

I concede at once that Amendment No. 139 covers a wider area, in that it includes evidence which may be confessions, but in the greater the smaller is also included. Therefore No. 139, in relation to the same area as that covered by 131, is inconsistent with 131. If both clauses appeared in the Bill it would make a nonsense of the Bill. I ask the noble and learned Lord in those circumstances—again I say this with deference—to consider his position. and possibly he may think it proper in the circumstances not to move 139 but to take time to consider the position.

The Lord Chancellor

My Lords, I was about to say what I thought on that very point when the noble Lord intervened. I naturally asked myself when 131 was passed whether my amendment was consistent with it. My provisional view is that it is consistent with it because if, in fact, they stood together in the Bill on the specific matter with which 131 deals, 131 would prevail, and on the rest of evidence 139 would prevail. I was in fact provisionally of that view.

However, what I was about to say was that, although I was provisionally going to move the amendment, I think that the situation would be such that one or other of them would have to be amended as a matter of good draftsmanship. I do not think for the purposes of the rule of order that there is the inconsistency which the noble Lord, Lord Mishcon, sought to put into it, but I think that they will not stand together comfortably in the same Bill. Therefore I undertake that whatever happens we shall have to look at this again before the Third Reading.

If I am advised that it is literally inconsistent, then I shall not move it, but of course I am rather remote from advice at the present time. I do not know whether my noble friend who sits on the Front Bench and is the real guardian of the order of the House at the moment will give me advice as to whether he has had any advice.

Lord Hooson

My Lords, may I simply ask the noble and learned Lord to reflect on one matter? When he was speaking to the amendment moved by the noble and learned Lord, Lord Scarman, he introduced reference to his own amendment. As I understood him he was virtually pointing to its superior merits and suggesting that it was therefore to be preferred to Lord Scarman's amendment. That would appear to me to place him in a little difficulty in what he has now said.

If, for example, these two amendments were to go to another place as a result of our deliberations here, the other place could surely say that they were incompatible and would have to choose between them. That would be an unfortunate situation.

Lord Renton

My Lords, I suggest that it would be a great deprivation if we were not able to consider Amendment No. 139 and, if convinced with regard to it, to add it to the Bill. If I understand the noble Lord, Lord Mishcon, correctly he is falling into the error of assuming that because there is a certain amount of overlapping in the scope of the two amendments, they are therefore inconsistent. That is not so. As was pointed out in the earlier discussion, the amendment in the name of my noble and learned friend is wider in scope than Amendment No. 131, but that does not prevent us from considering it and adding it to the Bill, as I understand it.

Lord Howie of Troon

My Lords, as the House will know, I am no lawyer and therefore I am fearful to tread where lawyers have been treading all day. However, this is a matter of order rather than of law. Might the problem possibly be resolved somewhat along the following lines? A manuscript amendment to Amendment No. 139 might be put down shortly to introduce a phrase such as, "notwithstanding the provisions of Amendment 131". It would not be in order in those words, but I am sure that the House will catch my drift. That might help us out of the present difficulties. I think it is worth considering.

The Earl of Swinton

My Lords, my noble and learned friend asked me to take advice to try to advise him. The best advice I can offer him is that it would be very clumsy, but not necessarily inconsistent.

The Lord Chancellor

My Lords, that was the view that I provisionally took. This is a purely technical question about which one must be guided by advice from a certain source. The provisional view that I took, almost identically with my noble friend Lord Renton, but which I now hear rather more authoritatively from my noble friend Lord Swinton, was that although it is obvious that good draftsmanship will demand some further drafting one way or the other, the two amendments are not in the technical sense inconsistent and the second amendment in numeration has not fallen by the carrying of the first. That is the technical rule of order that we are considering.

I was about to discuss this because I think it is worth discussing, even in the light of what took place on Amendment No. 131, in regard to which the Government yet have to take a decision. My view was, and is, that a wide discretion, of a wider scope than Amendment No. 131—which was aimed at the fairness of the trial rather than exclusively at the means whereby the evidence was obtained and which covered the ground of both confession and evidence other than confession—was a desirable addition to the Bill. My view was, though it has to some extent been overtaken by the decision of the House, that for the purposes of guiding a jury the Court of Appeal is a better guide than the words of a statute.

That brings in what I was saying to my noble friend Lord Renton a little time ago. I am very much in the hands of your Lordships because I am quite willing to withdraw the amendment if that is the wish of the House, but I may bring it back in a very similar form on Third Reading. I am quite willing to follow the wishes of the House in the matter, though I still stand stoutly by my provisional view on the technical point.

Lord Mishcon

My Lords, I wonder whether the noble and learned Lord will allow me to quote the words which I wrote down, I hope accurately, as to the guidance we were all given by the Government Front Bench? That guidance was that to proceed with Amendment No. 139 would be "thoroughly clumsy and not necessarily inconsistent". The noble Lord, Lord Renton, said that it was not inconsistent at all and the noble and learned Lord the Lord Chancellor said that it was not consistent at all.

The Earl of Swinton

Not inconsistent.

Lord Mishcon

Not inconsistent. The advice we have been given is that apart from the thorough clumsiness, it would not necessarily be inconsistent, which means that there is a doubt about the inconsistency. I should have thought that in those circumstances—indeed, this would be my hope—in order that we have a clear discussion Amendment No. 139 should not be moved today, but that the whole position should be reconsidered before we come back at Third Reading.

Lord Renton

My Lords, may I make just this further point. I think that sometimes we are entitled to assume that an amendment in broad scope may be highly desirable for us to discuss and add to a Bill and that if we fail to do that, especially at this relatively late stage of proceedings in both Houses, the Bill may reach the statute book in an inadequate state. That seems to me to be very much the position in which we find ourselves, perhaps unfortunately and most unusually. Having passed the earlier amendment of more limited scope, though admittedly of greater detail, should not deprive us of the opportunity to consider what may be a necessary addition to the Bill. If I may express a purely personal opinion, I hope that my noble and learned friend the Lord Chancellor will move his amendment.

Lord Diamond

My Lords, with the greatest possible deference perhaps I may make a practical suggestion. It has nothing to do with the law; it is to do with the clock. It is now 7.25. It is intended to break at 7.30. Everybody would enjoy the opportunity to think further and take further advice. Is it necessary to come to a conclusion before the break?

Lord Elwyn-Jones

My Lords—

The Lord Chancellor

My Lords, if I may say something, it may avoid the necessity of troubling the noble and learned Lord. It is clear to my mind that on a technical point of order I was right. I am grateful to my noble friend Lord Renton who expressed a personal view which I hold. But I shall not move this amendment because obviously there is a substantial body of opinion which does not want it moved. I do not know, therefore, that the noble and learned Lord need prolong this matter. I am greatly influenced by the reference of the noble Lord, Lord Diamond, to the clock, but I think I can cut the knot by telling him that I shall not move the amendment.

Lord Elwyn-Jones

My Lords, may I say "Thank you" on behalf of the whole House for that?

[Amendment No. 139 not moved.]

The Earl of Swinton

My Lords, I think we have been getting into terrible troubles because various noble Lords have been talking about points of order. We do not have points of order in this House and I should have risen a little earlier. I feel that I am perhaps on safer ground now in suggesting that this might be an admirable time to adjourn the Report stage while we have dinner. In doing so I suggest that we do not return to this Bill before 8.30.

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

Baroness Trumpington

My Lords, I stand before you metaphorically naked because I am awaiting the noble Lord, Lord Lucas. I can think of various ways in which I can regale your Lordships, but I am happy to see my noble friend now and so can sit down.