LORDS AMENDMENT (Hansard, 30 October 1984)

§ Lord Elton
My Lords, I beg to move that the House doth not insist on their amendment numbered 8, to which the Commons have disagreed, and doth agree with the Commons in their amendment numbered 9 in lieu thereof. At the Report stage of our proceedings on this Bill your Lordships decided to insert a new clause after what was then Clause 71. The scheme of the new clause, which was moved by the noble and learned Lord, Lord Scarman, is that a court shall not allow evidence to be given unless certain requirements are met. Once it is plausibly suggested to the court that evidence may have been obtained improperly, the court has no choice under the new clause but to apply the tests set out in the subsections.
It is, I think, both clear and generally agreed that this provision will result in a significant increase in the numbers of trials within trials, and that they will be long and complex. But that does not seem to us to bring any benefit to the process of justice. This is one of the considerations which has led the Government to dislike the new clause.
That is not to say that the court should never hold such a trial within a trial; nor is it to say that the court should not have a discretion to exclude unfairly obtained evidence if the admission of it would render the proceedings unfair. Nor, indeed, is it to say that the discretionary power should not be written into the statute book. In all this we are on common ground with the noble and learned Lord and his supporters, and that is why, in a moment, I shall be asking your Lordships to agree with an alternative amendment which gives this discretion to the court. I must, I think, say what are the other reasons we have for disliking what the noble and learned Lord proposed, and your Lordships agreed, and for seeking an acceptable alternative, but I shall do so only briefly because we are on familiar ground.
Much has been made, especially in another place, of the clarity and precision of the drafting of the new clause. The court would know what to do, it was suggested in another place, because Parliament would have told it what to do. As a layman, I found myself a little surprised sitting there in the Gallery. I recalled the seven tests in the clause, and I also recalled the very trenchant things said about them by my noble and learned friend the Lord Chancellor. I should reassure those of your Lordships who feel that you have come to a play in which the understudy is in a principal role, by saying that my noble and learned friend will reply to your Lordships' remarks.
475 But my noble and learned friend the Lord Chancellor, who is about as far from being a layman as it is possible to be, pointed out that the amendment as drafted invited the court to accept a different and apparently lower standard of proof in cases involving a very grave offence from those involving trivial ones. He asked whether that was the intention of sub-section (1)(c). He asked what sort of significance the court was to take as being "material significance" in the subsection before it. He asked what standard of certainty was required by the words, If it appears to the court… that any evidence … may have been obtained improperly", with which words the whole process of testing is initiated.
All these seemed to me, as a layman, very pertinent questions. They are open questions, and they are questions which a court must answer before it is able to obey the direction laid on it by this clause. The fact that they are questions at all—and my right honourable friend asked them in much the same terms in another place—makes it clear that the court is invited to make a series of value judgments about matters on which the clause cannot be precise at all. They must remain in doubt, and doubt seems to arise in this clause more readily than one might wish of anything we put on the statute book.
But of one thing I think there is no doubt. All of your Lordships, I believe, wish to see justice done, and done fairly. We want to see the guilty fairly convicted and the innocent fairly acquitted. What we do not want to see is the guilty being unfairly acquitted. Yet as my right honourable friend the Home Secretary pointed out in another place, the new clause could lead to the acquittal of a guilty man, not because of a confession that has been wrung from him by oppression, nor as the result merely of a fair trial, but simply because evidence has been obtained in breach of the law or of the codes of practice.
Many noble Lords who supported this new clause did so, I believe, because they wished to prevent misconduct by the police. I will not now recite yet again the impressive battery of safeguards against such misconduct that we have already erected both in the Bill and in the codes of practice, because your Lordships know them all too well. The point I now wish to make is that if misconduct nevertheless does occur, then the effect of the clause is to punish not the police, but the public. Punishment is exacted from the public by turning the guilty, and perhaps dangerous, man loose among them. That does not seem to us what your Lordships would, on reflection, wish to do.
I will not dwell longer on our objections to this new clause. They were put cogently on the record by my noble and learned friend for all to read at the last stage here. But while we discussed that amendment, my noble and learned friend had another on the Marshalled List. His proposal was to give the judges a discretion to exclude unfairly obtained evidence, and to make the basis of that exclusion the fact that not to exclude it would upset the fairness of the trial. That amendment remained on the Marshalled List here and the noble and learned Lord's amendment went, on a majority of seven votes, with the Bill and down the corridor to another place. In another place, it was 476 rather less successful and the elected House of Parliament decided against it. That, I submit to your Lordships, would alter the case even if we now offered your Lordships an amendment in exactly the terms of that which was on the Marshalled List at Report, but that is not what I propose we should do.
In discussion at an earlier stage the noble and learned Lord, Lord Scarman, brought two points home to us with considerable force. He reminded us that the term "prejudicial", which we had used to describe the effects of evidence which might cause it to be excluded, had been invested by the courts with a much stronger meaning than was appropriate in the context, and we have removed it, thus considerably altering the impact of our proposed new clause. He also pointed out that, in all fairness, what we proposed to do for evidence gained from the accused ought to be done for evidence gained from any other person. Again, we were persuaded, and we have changed the amendment accordingly.
The amendment as drafted gives the court discretion in criminal proceedings to refuse to allow any prosecution evidence to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It simply allows the court to exclude evidence if the fairness of the proceedings would be adversely affected, and explicitly requires the way in which the evidence was obtained to be addressed in any such decision.
In enlarging the effects of the clause in response to the suggestion of the noble and learned Lord, Lord Scarman, we have taken the opportunity to embrace evidence given in a confession. Our amendment is therefore intended to provide a framework for considering the fairness of admitting all forms of evidence on which the prosecution proposes to rely in any case brought before the courts.
We believe that this amendment will achieve the fairness that all want to see established: fairness to the accused, because decisions on admissibility of evidence against him should not depend, for example, on the charge he faces; fairness to the public, because evidence will not be excluded purely for some reason lying outside the question of the guilt or innocence of the accused; and fairness to the court, because the number of disputes over the admissibility of evidence will be reduced by this amendment, so it can devote itself effectively and efficiently to its proper function—providing a fair trial for the accused.
I believe that this amendment is preferable to the present clause. The underlying principle is there, but our proposal will also simplify procedures on the exclusion of evidence; will reject evidence whose use is unfair for whatever reason; and will include all relevant and good evidence in the best interests of justice—and that means in the best interests of us all. My Lords, I beg to move.

§ Lord Scarman
My Lords, as the one who moved the amendment which found favour with your Lordships' House, I think I owe it to the House to indicate at once my position upon the Message from another place. I confess that the longer I listened to the delicate shafts directed by the noble Lord the Minister towards what I would impertinently call "my amendment" the more I became determined to change my mind and have a fight for the original amendment. I have resisted that temptation. I do so not because I share the noble Lord's dislike of your Lordships' amendment. I still think that it has great virtues and that it is preferable to that which has emerged from another place. I do so for two reasons. First, I see the virtues and qualities in the amendment which has come from another place. I believe that it has absorbed those virtues and qualities from a certain ministerial study of your Lordships' amendment. It is certainly an amendment which will provide the judges with a useful exclusionary rule where it is right and proper that evidence should be excluded, by which I mean where improperly obtained evidence should be excluded.
Secondly, bearing in mind what has been achieved in another place—largely, I suspect, due to the imaginative and determined work of this House—I suggest that this is not an issue upon which we should enter into an argument with the elected House of Parliament. I attach great importance to the constitutional argument. Questions of principle will arise in which the constitutional argument cannot be allowed to prevail; but when the question is, as here, a choice between two proposals, each of them having merit, the fact that I may happen to think your Lordships' proposal has greater merit than that from the other House is no reason for rejecting the other House's view, they being the elected House, if there is quality in their proposal, too. I should not advise the House to insist upon the House's amendment.

§ Lord Mishcon
My Lords, I am perfectly sure that the House would always want to follow the guidance of the noble and learned Lord, to which we have just listened. I therefore rise merely in order that the record should be clear. My noble and learned friend Lord Elwyn-Jones and I—I add my own name with all due humility—have studied both amendments and have listened to the arguments about the limitation of the amendment coming from another place relating to the case within a case and we do not have the slightest doubt but that the amendment which is now before the House for acceptance will widen the area of debate, argument and dispute.
The original amendment of the noble and learned Lord laid down very clear guidelines upon which the court could act. We now have an amendment under which all the circumstances in which the evidence is obtained—broad terms, general terms—can be taken into account by the court. In those circumstances, one can imagine every advocate appearing for a defendant thinking that he has not done his duty if he has not asked the court to explore every single avenue relating both to impropriety and to the grounds of admissibility or non-admissibility. That is because the amendment which we are now considering is in such general and vague terms.
478 As I have already mentioned, I put this on record as the view which my noble and learned friend and I take about this amendment by way of tribute to the original amendment which was passed by your Lordships. However, in view of what the noble and learned Lord has said about what he rightly called his amendment, I have nothing further to add.

§ Lord Elwyn-Jones
My Lords, may I be permitted merely to add a tribute to the noble and learned Lord, Lord Scarman? It was he who initiated this fascinating and, I believe, extremely important discussion which has produced the compromise result we have arrived at today. Before I sit down, may I also pay tribute to the noble and learned Lord for his initiation of the important amendment regarding racial discrimination and express our pleasure that the Government thought it right yesterday to support the decision of your Lordships' House.

§ Lord Campbell of Alloway
My Lords, having opposed the amendment of the noble and learned Lord, Lord Scarman, in its various forms at various stages of the Bill, may I be allowed to associate myself with the tribute which has been paid by the noble and learned Lord, Lord Elwyn-Jones? Without the initiative of the noble and learned Lord, Lord Scarman, we could never have arrived at this broadly acceptable situation, which fuses the good aspects of both sides of the debate. I merely wish to acknowledge that fact.

§ Lord Donaldson of Kingsbridge
My Lords, if the noble and learned Lord, Lord Scarman, is content with the present situation, we on these Benches will say no more about it.