HL Deb 14 December 2004 vol 667 cc1257-75

The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That the draft order laid before the House on 15 November be approved [First Report from the Joint Committee; 23rd and 24th Reports from the Merits Committee, Session 2003–04; 2nd Report from the Joint Committee on Human Rights].

The noble Baroness said: My Lords, this is the first order to be made under the power to prescribe categories of offences conferred on the Secretary of State by Section 103(4)(b) of the Criminal Justice Act 2003. This order supports the major changes contained in that Act, which will let juries hear a wider range of relevant evidence so enabling them to reach a just verdict.

Where a previous conviction is in the same category as the offence with which a defendant is charged, this will create a strong presumption that the previous conviction should be admitted, but this presumption will be rebuttable. The defence will still be able to oppose the admission of such evidence on the grounds of unfairness, and the court retains its discretion to refuse to admit such evidence where it would have an adverse effect on the fairness of the proceedings. So the general exclusionary power in Section 78 of the Police and Criminal Evidence Act 1984 will still be available.

It may be for the convenience of the House if I begin by summarising the evidence that has informed the Government's approach to the creation of the two categories of offences that are the subject of this order. As regards the theft category, the Government have noted that of the nearly 20,000 persons convicted of an offence within this category in the first quarter of the year 2000, some 14,500 persons were reconvicted within two years. I am sorry to say that nearly two-thirds of those persons were reconvicted of an offence falling within the same category of theft, as defined by the order.

In the case of the category of sex offences against young persons, the Government have been influenced not just by reconviction rates, but also by the evidence that sexual attraction to children can have a compulsive and life-long character. I make reference to further information in support of that contention in a letter that I wrote on 7 December to the chairman of the Joint Committee on Human Rights, a copy of which I have placed in the Library, and to which I shall refer further later on.

The purpose of creating categories of such offences is to assist the judge in determining whether to admit evidence of bad character. The Government's position is simple: the jury ought to be told about previous offending within these categories, where that is relevant to the defendant's propensity to commit such an offence.

I turn now to the report on this order that has been produced by the Joint Committee on Human Rights. For the avoidance of doubt about the Government's position on that matter, as I have already said, I placed a copy of a letter in the Library of your Lordships' House.

I am happy to reassure the House that the Government's view is that the order is compatible with the right to a fair trial in Article 6(1) of the European Convention on Human Rights. Our position, put simply, is that the order can and must be used in a way that is compatible with human rights. I use the auxiliary "must" advisedly because by Section 6 of the Human Rights Act 1998 the judge in any trial is under a clear statutory duty to act compatibly with the convention rights. Those rights include, of course, the right to a fair trial. The judge must, therefore, apply the order so as to achieve that end.

We note the Joint Committee's suggestion that the order is theoretically capable of leading to an unfair trial, but we would make two points about that suggestion. First, the Joint Committee is not saying that the order is incapable of leading to a fair trial; merely that it might not do so. In the Government's view, that analysis overlooks Section 6 of the Human Rights Act.

My second point is that we do not accept that the order will in any case mean an unfair trial. The categories contained in the order are simply for guidance to the court. The fact that an offence falls within one of the categories does not mean that evidence of bad character is automatically to be admitted on that account, or at all. That is because the judge retains the discretion to exclude such evidence under Sections 101(3), 103(3), and 112(3)(c) of the Act, as well as under the general exclusionary power in Section 78 of the Police and Criminal Evidence Act, which I have already mentioned. At the risk of labouring the point, the judge will be bound by the Human Rights Act to exercise his or her discretion in a way that is compatible with the convention rights.

The Joint Committee also raised the issue of judicial training. Again, my letter of 7 December sets out the position in some detail. Suffice it to say for the purposes of this debate that it is clear that the Judicial Studies Board is playing a very active role in ensuring that consistent training and messages are being delivered to judges and magistrates. Finally, so far as the committee's letter is concerned, I can confirm that rules of court have been made, and that they provide safeguards for defendants, both in terms of procedure and in the design of the forms.

I now turn back to the content of the order itself. Chapter 1 of Part 11 of the Act sets out the new provisions regarding the admissibility of evidence of previous misconduct, otherwise referred to as "bad character", in criminal proceedings and abolishes the old common law rules. The structure of these new provisions is as follows: evidence of a defendant's bad character will be admissible so long as it falls under one of the gateways set out in Section 101 of the Act. One of the gateways by which bad character evidence may be admissible is where such evidence is, relevant to an important matter in issue between the defendant and the prosecution". That is set out in Section 101(1)(d) of the Act. A matter in issue includes the question of whether the defendant has a propensity to commit offences of the kind with which he is charged.

In order to guide the courts, we have made statutory provision so that this propensity may be established by evidence that the defendant has been convicted of an offence of the same category as the one charged. Section 103(4)(b) then confers on the Secretary of State power to create categories of offences by way of affirmative order. Such categories, however, must consist of offences of the same type. That is set out in Section 103(5) of the Act.

The two categories proposed in the order today are, therefore, for the guidance of the courts in determining whether evidence of the defendant's bad character is relevant to an important matter in issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences that are of the same type. The categories shown in the schedule cover theft offences and sexual offences against children and young persons under the age of 16. These are the two areas of offending that cause the public particular concern, and where there is a strong risk of repeat offending. I beg to move.

Moved, That the draft order laid before the House on 15 November be approved [First report from the Joint Committee; 23rd and 24th reports from the Merits Committee, Session 2003–04; 2nd report from the Joint Committee on Human Rights].—(Baroness Scotland of Asthal.)

Lord Thomas of Gresford rose to move, as an amendment to the above Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".

The noble Lord said: My Lords, a man once described his regime as, fearsome towards the wicked, but favourable towards the good". It was not Mr Blunkett who said that, although he very well might have, as it is the sort of thing that he says from day to day. It was said by Robespierre, head of the Committee of Public Safety in France, when, on 17 September 1793, he brought into force the Law of Suspects, which granted extensive powers to the police and denied suspects almost any rights at all.

In June 1794, the Committee of Public Safety passed a law which effectively reduced the trial process to a simple appearance before a judge, without any right to speak, and with very prompt sentencing and execution. The Public Prosecutor, Fouquier-Tinville, said with some satisfaction, "Heads are falling like roof tiles". Indeed, 17,000 heads fell within a very short period, in the Great Terror.

Mr Blunkett should beware, because within two months, Robespierre alienated his fellow revolutionaries and himself lost his head. He went too far. He insulted those with whom he was working and suggested that they, too, might meet the fate that he met. So his virtuous intentions in introducing these laws did not save him.

My amendment seeks to call into question the policy under which these regulations are laid. We debated the principles when the Bill was going through this House, but now that we are approaching the first implementation of its provisions, it is right for us to state our firm and principled objections. It remains, as we said at the time, bad law, even though the Bill was forced through by its Commons majority—that Monty Python foot that squashes down from time to time. It comes within the category that was very well described recently by the noble Lord, Lord Butler of Brockwell: The executive is much too free to bring in a huge number of extremely bad bills, a huge amount of regulation and to do whatever it likes—and whatever it likes is what will get the best headlines tomorrow. All that is part of what is bad government in this country".

However much the Government's poodle apologists have tried to laugh off the views of the noble Lord, Lord Butler, that is the truth of the matter. In this instance, the Government have ignored every informed body that they have consulted—the Law Commission, the judges through the Lord Chief Justice, the professions, the non-partisan organisations such as Justice and Liberty, and their own research.

To put the issue of acquittals in perspective, according to the Home Office publication Crime in England and Wales 2003/2004, there has been a fall in crime generally in this country, although violent crime and sex crimes are up. Even so, something over 5 million crimes, excluding traffic offences, were recorded by the police in that year. Of those crimes, 18.8 per cent only were detected. "Detected" means somebody being charged or summoned or cautioned, having an offence taken into consideration or receiving a fixed penalty notice. That means that 82 out of every 100 offenders who had committed an offence were not detected. Detection rates are at their lowest ever in crimes of violence and sexual offences, and of theft and burglary.

Of the detected crime, a very low percentage of recorded crime—about 8 per cent—ends up in the Crown Court. That is roughly 100,000 cases in a year, and of those, 65,000 plead guilty. Of those people who plead not guilty, well over half are found guilty anyway. But it is not always the jury which acquits. In a third of acquittals, the judge dismisses the case, either because the Crown offers no evidence or because he finds that there is insufficient evidence anyway. So acquittals by a jury amount to less than a quarter of contested cases, perhaps 8,000 to 9,000 cases in a year.

In magistrates' courts, where 94 per cent of detected crime is dealt with, the 1999 statistics, which were the most recent that I could put my hands on, state that 98.4 per cent of cases ended either in pleas of guilty or in convictions. Only 1.6 per cent ended in acquittal.

My point is that some might think that the court end of the criminal justice system works rather well and that the problem is not what goes on in the criminal justice system in the courts but the detection rate—the 82 people out of 100 who commit an offence and are never detected.

It cannot be assumed that every person acquitted is actually guilty. Some of the statements one hears from the Prime Minister and the Home Secretary seem to suggest that everybody who is acquitted has got off even though he is guilty. The CPS guidelines are to prosecute if there is more than a 50/50; chance of conviction—on a balance of probabilities, there will be a conviction. That is very short of establishing, to anyone's satisfaction, that a defendant has committed the crime with which he is charged. The problem of crime is not the acquittals of people who ought to have been convicted; it is in the detection rates.

What lies behind these regulations? We say it is a determination to increase conviction rates in cases which are brought to court, not by better investigation, preparation or presentation, but by deliberately prejudicing the mind of the magistrate or the individual juror against the defendant. I say "deliberate" because the Government's own research, commissioned by the Lord Chancellor's Department in 2000, found that magistrates' ratings of likely guilt were significantly affected by information about the defendant's previous record, particularly of a similar recent conviction. Dr Sally Lloyd-Bostock, who carried out the research, drew attention to an earlier study with simulated jurors, where the like effect was observed. She also found with jurors that there was a powerful negative effect for a previous conviction for indecently assaulting a child, even when that offence had nothing to do with the charge that the defendant was facing.

In its report of October 2001, the Law Commission referred to a Dutch study which indicated that 100 per cent of judges who heard the defendant's convictions in advance went on to convict him, while only 27 per cent of those who had no prior knowledge convicted. The rest of the evidence was identical. So to suggest that the production of a person's previous record will have no effect is contrary to the evidence which the Government's own research has produced.

We can compare that research with Mr Blunkett's statement on 25 October, when these regulations were introduced. He said: Trials should be a search for the truth and juries should be trusted with all the relevant evidence available to help them reach proper and fair decisions". He says "proper and fair decisions", yet according to the Government's research, juries are being deliberately prejudiced.

The Law Commission set out a scheme with a number of key principles, in particular, that leave to adduce evidence of bad character would always be required from the court. That scheme—its approach and its safeguards—was ignored by the Government. The Government's proposals were attacked by Justice, by Liberty, by the Bar Council and by the Law Society. Only the Association of Chief Police Officers could be found to support them.

As for these regulations, the Merits of Statutory Instruments Committee raised queries about them, and the Joint Committee on Human Rights, in its report on 8 December, concluded that their provisions are not compatible with a fair trial.

I have had the benefit of reading the Minister's letter, and it does not answer the points made by the Joint Committee on Human Rights. In particular, it does not answer the Joint Committee's specific problem when it said that the exercise of the judge's discretion was not sufficient to make these provisions compatible with a fair trial. If there is no fair trial, there can be no safe conviction.

8 p.m.

Our criminal justice system depends on the trust and consent of the people. We believe in a fair and public trial. We believe in magistrates with firm roots in their communities, acting independently of political influence and control—a matter to which I will return. We believe in juries chosen by lot from the general population who will determine the truth in serious cases. To assist justice, the common law developed systems of checks and balances: importantly, the law of this country has always sought to ensure that a person accused of a crime is convicted not on prejudice, not by reason simply of evidence of propensity to commit crime, but on evidence of facts.

Witnesses, trusting in the fairness of the system, sometimes with considerable courage, come forward to give that evidence. The damage done by wrongful convictions to the public's trust in the system and the willingness of the people of this country to play their part—to come forward as witnesses, to be jurors and serve as magistrates—is considerable. There may not be a huge number of cases, but there are sufficient to cause disquiet. What is certain and what all those who know anything about this subject are agreed on—all those bodies to which I referred—is that the risk of wrongful convictions is significantly increased by these regulations and the Act on which they depend.

Why are these regulations being rushed forward now? They come into force tomorrow. There has been no training of judges. I met a recorder of considerable seniority this morning who said to me, "What on earth is this all about? What are we supposed to do?" The general consensus of opinion in the legal profession is that we have to wait for the Court of Appeal to sort out this Act. We must wait for determinations as to whether there has been a breach of the convention Article 61. We may even have to wait for pronouncements in the House of Lords and the European Court of Human Rights, so why are they being rushed forward in such haste? Why does the Home Office say in its release of 25 October that, the strong presumption should be that the conviction should be revealed to the jury"?

The Minister says, "The judge has a discretion which we are sure he will exercise", and "He will be governed by Article 61 so he is bound to ensure that there is a fair trial", so why is her office coming forward with the statement above? She did not say that at any stage while the Bill was going through this House. That is exactly the sort of message that is being conveyed to our judges. When they come to exercise their discretion, they will be thinking to themselves, "Well, the Home Office is saying that we have to have a strong presumption that this conviction will be revealed". Never mind about a fair trial. This is the important thing and that is what the prosecution will rely on.

Why has there been no training? Why are the regulations coming into effect tomorrow? These regulations are simply vote-grabbing headlines. "Headlines" is the word that the noble Lord, Lord Butler, used in his statement the other day. That is for the Government, but for the person who is wrongfully convicted as a result of having convictions that have little relevance—that he was convicted of theft 20 years earlier when he is facing a charge of burglary or robbery—it is the loss of reputation, the loss of employment and the loss of liberty with only paltry compensation, if he is lucky, at the conclusion. That is all justified on the populist premise that too many guilty people are getting away with it. I wearied your Lordships with the statistics of acquittals in this country to demonstrate that we are not dealing with a problem of acquittals and that the criminal justice system in the courts works well.

Judges will have a discretion to refuse to permit this sort of evidence to go before the jury. Let us hope that, contrary to the Home Office direction, they use that discretion. I am here hoping that a judge who considers an application at a later stage will realise that there is large parliamentary opposition to any attempt by the Government to impose a fetter on his discretion in terms of that Home Office statement of only a couple of weeks ago. Let us hope that judges will use their discretion in accordance with the traditions of the law of this country as it has existed for centuries and not in accordance with some populist policy of the moment to grab headlines for the purpose of an election. Only in that way will we achieve justice. I beg to move.

Moved, as an amendment to the Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".—(Lord Thomas of Gresford.)

Baroness Anelay of St Johns

My Lords, as a result of the words of the Minister and the noble Lord, Lord Thomas of Gresford, we have two matters before us that we need to debate tonight. First, the content of the statutory instrument itself—we should consider whether the drafting of that appropriately reflects the intention of this House when we debated the propensity during the Criminal Justice Act 2003. We also need to consider whether the provisions are logical and proportionate.

Secondly, after the Motion moved by the noble Lord, Lord Thomas of Gresford, we need to examine whether it is right to reopen the whole matter of the Government's policy of providing for a presumption in favour of admissibility rather than the current presumption against it.

I will first refer somewhat briefly to the Motion moved by the noble Lord, Lord Thomas of Gresford. I cannot follow his historical allegory or accuracy, but my memory goes back to the 2003 Act at least. At that stage, we on these Benches confirmed that we accepted with considerable caution that change to the original rules on evidence of bad character was required. On that basis, I do not resile from that position today. The question was how the provisions could be framed in such a way that we could avoid the chance of irrelevant material that was merely prejudicial and could not be probative going before a jury. The Government acknowledged then that merely to legislate for a free-for-all, whereby everyone's previous convictions automatically went in, would be wrong.

A judicial safeguard therefore does remain, and remains even in spite of this order. However, the noble Lord, Lord Thomas of Gresford, has raised the relevant point of the directions issued recently by the Home Office with regard to a strong presumption being required. I certainly look forward to an explanation of that from the Minister. Given our undertakings made at the time of the passage of the Criminal Justice Act 2003 and the existence of the judicial safeguard, I have to say that if the noble Lord, Lord Thomas of Gresford, were minded to divide the House tonight on his Motion, we would not be able to support him.

On the content of the statutory instrument itself, I make a procedural point that will not surprise the Minister. It goes to the heart of the concerns that I have had about the way in which this Government tend to introduce skeleton Bills with loads of orders in them. The Criminal Justice Bill was certainly not a skeleton; it was mammoth, but it did have a lot of orders in it.

When the Government lay before us an order, they then tend to give us a little bit of a curate's egg; I beg the pardon of the right reverend Prelates for using that phrase. Part of the order tends to be apparently unobjectionable, or at least arguable, and the other part something that we find that we cannot accept. When an order is laid in that way, we find ourselves faced with the difficult constitutional and party political problem that if we throw out the baby with the bath water, that may well not be understood by the public. That is what has happened today. The Government are aware that in this House, we are reluctant to take the nuclear option. Since we are not allowed to amend a statutory instrument, if we do not like part of it, we would have to throw the whole thing out. There are certainly objectionable drafting provisions in today's order that have been piggy-backed on to provisions that we find properly acceptable.

During our debates, the issue of propensity became the key factor in determining admissibility. We understood at the time of the passage of the Criminal Justice Act 2003 that, of course, the Government would not only seek to introduce orders to describe categories of offence but that, in doing that, they would not necessarily simply compare one offence with another. It was obvious that they would seek to widen the scope and push the boundaries as far as they could. Indeed, we accepted that that would not necessarily be an objectionable use of the order-making power. The problem today is that the Government have drafted the first part of the order on theft in an illogical and potentially inequitable manner.

In the theft category, I am mystified by the Government's logic—as were my honourable friends in another place last week. Theft is a dishonesty offence; it is about taking someone else's property. If the common link is dishonesty, the thing that one immediately notices is that there is a large number of offences in the list that the Government have not included in the category. For instance, they have not included obtaining property by deception. Fraud offences are not included in the category—which is, again, rather odd. So on what basis did the Government decide that those offences do not go as to propensity for theft but that burglary does?

As the Joint Committee on Human Rights highlighted, it is possible to commit burglary without taking anyone's property—without committing a theft. I also note the letter from the Joint Committee on Statutory Instruments in another place to Mr Clayton at the Home Office. Paragraph (1)(a) asks: Does the Department agree that an offence of burglary or aggravated burglary does not involve stealing where the defendant's sole purpose in entering the building was, or is alleged to have been, to inflict grievous bodily harm, to rape or to do unlawful damage and he neither steals, nor attempts to steal, anything? It seems strange that burglary is in the list. We therefore believe that the first category of offence may be flawed, and that we may end up with the courts at a later stage pulling that part of the order to pieces.

The second category of sexual offences is very wide, but at least there appears to be an inherent logic behind it, because it relates to sexual offences against persons under the age of 16. We acknowledge that it may follow logically that, if someone has a propensity to commit an offence of a sexual nature against somebody under 16, that may establish a commonsense link between the various offences. However, I must observe in passing that people who serve on a jury may find it odd that they will he made aware of an offence of rape against a person who is one day under the age of 16 but not of a string of offences of rape by that same person against persons who are one day over the age of 16. That shows the artificiality of the Government's determination to enforce the presumption of admissibility.

It will require the expertise and experience of the judiciary, on which the Minister has relied and I certainly rely, to determine how the provisions will be applied. That takes me to my last point, to which the noble Lord, Lord Thomas, has very properly referred—the training of the judges themselves. That is a matter which very much concerns me. I note that the 23rd report of the Merits of Statutory Instruments Committee of this House makes the point at paragraph 13, that, The House may wish to inquire further into the timing and nature of the training to be provided for judges and others in the criminal justice system". The letter from the noble Baroness, Lady Scotland, to which reference was made earlier today, lists the training that it is anticipated will take place. It is a list that is long in referring to the people who are to be trained but short on any timetable, and signally lacking in any commitment that the Government expect training of all the judiciary to have taken place before the provisions take effect—and as the noble Lord, Lord Thomas of Gresford, said, that is tomorrow. I find that very disturbing indeed.

When my honourable friends in another place pressed this matter, the Minister, Mr Paul Goggins, did not seem very able to assist them in clarifying the situation. As the noble Baroness who wrote the letter is present, perhaps all will now become clear. As I was somewhat disappointed by the Minister's response in another place I took the liberty yesterday of approaching the Judicial Studies Board direct. I asked it to confirm when the training of the judiciary regarding the matters contained in this order would be completed. It confirmed by e-mail that the seminars will not be completed until 23 March next year. My question therefore has to be: why did the Government decide to press ahead with this order today instead of following what must surely be good practice and waiting until they could be assured that the training of the judiciary was in place? This is not an auspicious start to what I am sure will be a flood of further orders.

8.15 p.m.

Lord Ackner

My Lords, in my submission the Home Office press release of 25 October is grossly improper. The Home Office obviously accepted that it would be bound to put in a provision that gave the judges discretion in order to make sure that justice was done. Accordingly, it was provided by Section 101(3) as follows: The court must not admit evidence under subsection (1)(d)or(g)if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". That was providing the judiciary with a clear discretion that they must see that justice was done. It is accordingly in my view grossly improper to indicate by a press release that, the strong presumption should be that the conviction should be revealed to the jury". The Executive are not entitled, in giving a press release or any other release, to make a comment which has no statutory support purporting to reduce the discretion upon the courts to do justice, which not only exists without statutory support but where there is specifically statutory support for that.

The same press release gives the game away by saying that the order will, enable juries to have much greater access to information about a defendant's previous convictions and other misconduct where such information is relevant and likely to throw new light on a case"— I emphasise the following words— without unduly prejudicing the fairness of the trial". What an extraordinary phrase to use. According to this, there is no harm in prejudicing the fairness of the trial provided you do not do it "unduly". What on earth does "unduly" mean? I suppose it means provided that you do not ignore what we, the Executive, tell you is the strong presumption that you should reveal the conviction to the jury.

With regard to the question of training, I adopt all that has been said on the issue of timing. Your Lordships may remember that the Lord Chief Justice and the judges of the Court of Appeal Criminal Division discussed this among themselves on Report on 4 November 2003. In that debate, I quoted from the memorandum that was provided by the Lord Chief Justice. According to the statement that was supported by the Lord Chief Justice and the judges of the Court of Appeal Criminal Division, The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals, and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".—[Official Report, 4/11/03; col. 730.] This is a manifestation of an excessively authoritarian department—the Home Office—supported, sadly, by the Prime Minister. It purports to deal with the enforcement of its own clauses, which are designed, as has been pointed out, to increase the rate of convictions. In my respectful submission, this is the type of legislation that was so strongly criticised by the noble Lord, Lord Butler, in the recent interview reported in the last issue of the Spectator. Accordingly, I support the Motion moved by the noble Lord.

The Lord Bishop of Worcester

My Lords, I confess that I feel a propensity coming on, and some anxiety that the Minister may notice it. My propensity is not to feel reassured by the immensely erudite and sincere reassurance that she has offered about these provisions. I have three reasons for not feeling reassured.

First, and I have mentioned this before, her words contrast quite strongly with the rhetoric that is used to publicise measures of this kind. What we are told is a benign power is presented to the public as a further act that will be tough on crime and will do something about it. It is because of the rhetoric that is used to commend this to the general public that I fear that her reassurance may not count for as much as we would like.

My second reason for not finding her reassurance reassuring this evening is that we have already had launched upon the political and legislative process a further Criminal Justice Bill. Therefore, it is hard not to see the order as one in a series of measures that has no end, because the stakes will always be raised. I have to say to the noble Baroness, Lady Anelay, that accepting the single steps cautiously or with hesitation is less than what is required in the face of that tendency.

My third reason for finding the Minister's reassurance unreassuring is the curious way in which she used her statistics. Research shows, she told us, that those who are convicted of theft or attacks on children are very likely to reoffend. That seems a strange example of what I think that I was taught as the undistributed middle—we are trying a burglary; burglars very often reoffend; this person has committed burglary; therefore he is likely to have committed this one. Even as a logical argument, that does not work.

I am reminded of some words of the noble Lord, Lord Thomas of Gresford, that he did not repeat this evening but that I found very telling in an earlier debate. He asked the noble and learned Lord the Lord Chancellor for guidance on the specific question of how much weight was to be attached by a jury to the fact of previous convictions, but answer came there none. That raised for me the question of whether this kind of legislation attacks the very heart of the Christian understanding of what it is to be a person that lies at the heart of our legal system; namely, the belief that human beings cannot be dealt with as systems of statistical correlations or inductively assessable processes. Every person who ceases to be a burglar—who reforms—has a point at which he or she has committed his or her last burglary. Every burglar who has committed no previous offences presumably commits a first offence. People's lives are not to be decided by reference to what they once did.

Of course I am not a lawyer but, as I understand it, where aspects of the crime being considered bear the footprint—metaphorically as much as literally—of a particular person's activities, that can already be made known because it actually is evidence. However, I find it extremely disturbing that we should, little by little, move into becoming a society where rhetoric founded on an undistributed middle is used as the basis to justify taking courses of action that will undoubtedly have a very serious effect on those many inadequate and inarticulate people who come to stand trial. I support the amendment.

Lord Dholakia

My Lords, I thank the noble Baroness for the explanation that she gave about the order. I intend to be very brief. I support the case made by my noble friend Lord Thomas of Gresford, and do not wish to repeat the arguments that he and the noble Baroness, Lady Anelay, advanced.

My noble friend has been consistent in the arguments in support of his amendment. They are not soft on crime or criminals, but are about the protection of the individuals facing criminal prosecutions. In the debate on 4 November 2003, as can be found at col. 729 of Hansard, he set out clearly the need to ensure that the onus must be placed on the prosecution to apply to a judge to declare previous convictions if those are relevant to put before the jury. It is for the judge to rule upon it. Why, therefore, is it necessary to place the onus on the defendant to raise the issue of his convictions before the jury?

Let me take up two issues that have not been addressed in your Lordships' House. I am concentrating on this point due to my concern about people tried in Crown Courts, even if in some cases magistrates' courts are more appropriate. There is ample evidence that a section of young people in our community have an adversarial relationship with the criminal justice system.

8.30 p.m.

A number of previous researches found that black people were more likely to opt for a trial before the judge and jury, rather than being tried by a panel of magistrates in court. It hinges on two factors. They are more likely to trust 12 jurors than three magistrates. Also, the legal advice that they receive is likely to point to higher courts because the defendant is more likely to be acquitted. One simply has to look at the Home Office research to confirm that. The order alters that balance, and that destroys the confidence placed in our courts.

There is another concern that I need to mention. Is there any mention of a cut-off period for information to be given to a jury? There are such things as spent convictions. Will they be referred to, or is there a time after which such information is not relevant? It is wrong to leave that discretion to judges. Parliament must be clear on that point, so that there is a uniform application of the practice throughout all our courts.

I believe that being obliged to reveal their past misdemeanours is more likely to disadvantage people before a jury. It would be a tragedy if the confidence in our jury system was lost, thus further creating a rift between the criminal justice system and the ethnic minority community. The system survives because of the trust that it commands. A change is likely to be counterproductive in the long run.

Lord Phillips of Sudbury

My Lords, this is an important order in respect of an extremely important piece of legislation, and I shall speak in favour of the Motion moved by my noble friend Lord Thomas of Gresford, which all other speakers so far have strongly supported, except the noble Baroness, Lady Anelay. Even the noble Baroness was ambivalent in her point—indeed, she made some strong points in favour of the Motion.

I also wish to make it clear that no one promoting the amendment is soft on crime, and I hope that no political capital will be made out of the fact that the Liberal Democrat Benches once again appear to be coming to the aid of those who are accused of crime. In fact, we are coming to the aid of the fair trial process, and we do that on a particular and fundamental basis: it has been the long-standing tradition of our criminal law system that the balance between prosecution and defence should clearly come down in favour of avoiding false convictions. That is not out of softness but out of the realisation that a criminal system that habitually convicts innocent men and women will not withstand time and will come swiftly into public disrepute. Did we not have some striking examples of that in some of the Irish bombing cases, which did huge damage to our system?

I also pay tribute to the noble and learned Lord, Lord Ackner, who is indefatigable and indomitable in his support of that principle. It puts me and people half his age to shame that he has done his homework with such assiduity and produced tonight that scandalous press release which, I am sure, the noble Baroness, Lady Scotland, will not attempt to defend. That is a telling warning of what rides on this matter.

In the matter of public disquiet about crime, which has recently been raised by certain burglary cases and the right to shoot burglars, the Attorney-General, the noble and learned Lord, Lord Goldsmith, struck the right note in that debate, in contradistinction to the Prime Minister. All that is germane to the fact that the provisions will have huge tabloid support because they appear to make life more difficult for those presumed to be guilty. Of course, the presumption of guilt is the very thing that we are trying to avoid in the fair trial process.

I was a little concerned at the way in which the noble Baroness led the debate. She referred to the cases that had been studied in order to ascertain the recidivism rates. I thought that my noble friend Lord Thomas made some telling responses to that. The fact is that the Home Office reply to the report of the Joint Committee on Human Rights did not deal with the question raised. The committee asked for research to be carried out to show whether the commission of one type of offence in the burglary schedule would or would not relate to other types of offence in the burglary schedule. The letter that the noble Baroness wrote on 7 December to Jean Corston in the other place simply gave bare statistics of offences in the theft category without attempting to show whether there was any relevance between one type of offence in the schedule and another.

Because it is not yet on the record but should be, I want quickly to read the conclusion of the Joint Committee on Human Rights, published on 8 December. The committee said: We are concerned that the draft Order may be incompatible with the right to a fair trial in Article 6(1) [of the European Convention on Human Rights] because it appears to make admissible in criminal proceedings evidence which is both irrelevant to any issues in the case and highly prejudicial to the defendant. We are therefore concerned that the draft Order may be unlawful". That should go on the record because we on these Benches agree with it.

Perhaps I may now mention one of the reassurances referred to by the right reverend Prelate and advanced by the noble Baroness, Lady Scotland. The noble Baroness said that, under Section 101(3) of the 2003 Act, the court must not—quite fairly, she emphasised the words "must not"—admit evidence under subsection (1)(d) or (g). I shall read on: if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would"— not "might"— have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". In my view, that is a very tough test. Again, I suspect that we on these Benches are not at all happy—for the same reasons that the Joint Committee was not happy—to leave the matter to the discretion of the judges.

Finally, I remind the House that, in this case, judges means lay magistrates, for whom I have the greatest respect. They do a fantastic and wonderful job. One is not merely talking here of justices' clerks; one is talking of legal advisers operating under justices' clerks, who may not have legal qualifications. How will legal advisers get their head around this extraordinarily complex legislation, bearing in mind that ultimately they can only render advice and cannot direct their justices and bearing in mind, too, that the submissions on admissibility will, I think I am right in saying, be heard with the justices present—that is, in the presence of those who will have to exclude from their minds the previous convictions, if the clerk advises them so to exclude or if they themselves decide to exclude? I say that, again, while emphasising my respect for them.

The measures and schedules that we have debated tonight —particularly the theft schedule—will make life impossibly difficult and sadly will lead to injustices that will rebound on the measure.

Baroness Scotland of Asthal

My Lords, I say straight away that, in opening the debate on the order, I tried to be absolutely clear about the issues with which the court would have to deal. I hope that noble Lords will accept that the statements made by me at the Dispatch Box have been accurate statements of the way in which the law is drafted and will now take effect.

Of course, I acknowledge the irresistible temptation, particularly because of the passion that the noble Lord, Lord Thomas of Gresford, and others have for this issue, to rerun the long, lengthy, complex debates that we had during the passage of the Bill. With the greatest respect, we have had those debates and the decision of Parliament was that the Bill should become an Act, and it is the Act which now governs our deliberations.

I was intrigued by the humorous allusion of the noble Lord, Lord Thomas of Gresford, to my right honourable friend the Home Secretary and Robespierre, but they bear no relation to each other and any such reference would be wholly inaccurate and without foundation.

I shall put the issues raised into context and reassure the House that these provisions have not been brought about to increase conviction rates by deliberately prejudicing the minds of jurors or those who adjudicate upon the matter as magistrates. I also remind the House that magistrates now have to make such decisions from time to time to exclude evidence as being irrelevant and then determine the matter. I remind your Lordships that nothing very much in that regard has changed.

The importance of the provisions is that the court will now be in a position to admit relevant evidence. Much of the value of that evidence is probative and is not outweighed by its prejudicial effect. I say to the noble and learned Lord, all probative evidence is, by its very nature, prejudicial to the defendant because it tends to indicate guilt rather than innocence. I am sure that those who drafted "unduly prejudicial" were referring to any improper or undue prejudicial influence that should not be included. Of course, prejudice flows from probative evidence that demonstrates an individual's guilt. To that extent; that is what we are speaking about.

I hear what the noble Baroness, Lady Anelay, says about this being a curate's egg. I do not necessarily agree with her on that, but it is a point that she has made and that we shall consider when looking at orders in the future, whether or not they are best served by separating out the issues. There is cogent evidence in relation to theft provisions to demonstrate why we have included them. I am sure that the noble Baroness will notice that the Joint Committee raised the issue of burglary, particularly because there are various types of burglary. In bringing forward this order, we have confined ourselves to burglaries that involve theft as opposed to other acts. I hope that the noble Baroness and your Lordships will feel that that is a proper restraint on our part.

On the issues of logicality, we say that they are logical. Training was raised by a number of noble Lords. The material that the judges will have to assist them in making an assessment has been produced by the Judicial Studies Board. We all applaud the work carried out by the Judicial Studies Board because invariably it is of a high quality, it assists judges in their determination, and it provides a pro forma which assists them in its application, so consistency is thereby maintained. It is right that the training will take some time and that 23 March is a speedy disposal of the matter. The trainers who will be responsible for training those judges have all now been trained.

I gently remind noble Lords—and I know that the noble and learned Lord, Lord Ackner, remembers it well—that there was a time when our judges could be relied on, even without specific training from the Judicial Studies Board, to apply the law with accuracy and with skill and to exercise their own erudite judgment in so doing. I know that a number of other noble and learned Lords present may have had similar experiences and recollections. Indeed, there was a time when judges felt their omnificence was such that no one could possibly trespass on training them.

Of course those days are gone, but by the same token I say without any fear of contradiction that our judges can be relied upon to read the training material and to apply it consistently, notwithstanding the fact that all the training may not be immediately available. Lay justices will have the benefit of training. I remind the noble Lords, Lord Phillips and Lord Dholakia, that justices' clerks will also have proper training and be able to discharge those matters.

I hear what the right relevant Prelate says in relation to rhetoric. But rhetoric, thankfully, does not prevail in our courts—the law and its application does. My other experience of our judges is that they are fairly resistant to rhetoric which is not founded on the law. So I think that we can be reassured by that.

The right reverend Prelate says that it is a series of measures that has no end. It does. The reforms we have put in place are practical. We have created a new framework and the tools and we ask people to apply them. I say to the noble Lord, Lord Thomas of Gresford, that if one looks at the changes that have been made, we have a reduction in ineffective trials; we are introducing charging; and we are introducing victim and witness units across the 42 areas. Those improvements are real and go toward improving justice and justice delivery; and they complement the other measures contained here.

I know that the noble Lord, Lord Dholakia, is concerned about the disproportionality that might appear. That matter has caused us a great deal of anxiety and care and we intend to be assiduous in making sure that the system applies equally and fairly to all.

The provisions of the Human Rights Act must not be forgotten. Article 6 is an important sanction, as is PACE. We believe that those two together will ensure that, in the proper exercise of discretion, evidence which is probative and relevant is admitted and that evidence which is not probative but is overall prejudicial in its effect will be excluded. Our law, therefore, remains intact as far as that is concerned.

Lord Thomas of Gresford

My Lords, I think that the right reverend Prelate the Bishop of Worcester put his finger on it—the assurances given by the Minister are not matched by the rhetoric with which these particular provisions come forward. We on these Benches are happy to stand alone on the principle of fair trials and justice and we take comfort from the support of the right reverend Prelate and noble Lords on Cross Benches and elsewhere in the House when we take that stand.

We have worked very constructively with the noble Baroness, Lady Anelay, on this Bill and on many others and I know we will do so in the future. But—if she may take a message back to others—there is no room on the authoritarian Right of this Government and there is no point in going along with this Government in the hope of outflanking them on the Right. You will not do that. So, on that basis I am proud on behalf of these Benches to divide the House on this issue.

8.50 p.m.

On Question, Whether the said amendment to the Motion shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 90.

Division No. 1
CONTENTS
Ackner, L. Linklater of Butterstone, B.
Alliance, L. Livsey of Talgarth, L.
Ampthill, L. Mackay of Clashfern, L.
Barker, B. Maclennan of Rogart, L.
Carlile of Berriew, L. McNally, L.
Carlisle of Bucklow, L. Maddock, B.
Chester, Bp. Mar and Kellie, E.
Craig of Radley, L. Miller of Chilthorne Domer, B.
Dholakia, L.[Teller] Northover, B.
Ezra, L. Phillips of Sudbury, L.
Falkland, V. Shutt of Greetland, L.
Falkner of Margravine, B. Smith of Clifton, L.
Garden, L. Thomas of Gresford, L. [Teller]
Goodhart, L. Thomas of Walliswood, B.
Hamwee, B. Tordoff, L.
Harris of Richmond, B. Wallace of Saltaire, L.
Hooson, L. Walmsley, B.
Howe of Aberavon, L. Walpole, L.
Howe of Idlicote, B. Watson of Richmond, L.
Lawson of Blaby, L. Williams of Crosby, B.
Lester of Herne Hill, L. Worcester, Bp.
NOT-CONTENTS
Amos, B.(Lord President of the Council) Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Andrews, B. Crawley, B.
Archer of Sandwell, L. David, B.
Ashton of Upholland, B. Dean of Thornton-le-Fylde, B.
Bassam of Brighton, L. Dixon, L.
Bernstein of Craigweil, L. Donoughue, L.
Blackstone, B. Dubs, L.
Borrie, L. Elder, L.
Brett, L. Evans of Parkside, L.
Brooke of Alverthorpe, L. Evans of Temple Guiting, L.
Brookman, L. Falconer of Thoroton, L. (Lord Chancellor)
Burlison, L.
Campbell-Savours, L. Farrington of Ribbleton, B. [Teller]
Carter, L.
Carter of Coles, L. Filkin, L.
Clark of Windermere, L. Gale, B.
Gilbert, L. Massey of Darwen, B.
Golding, B. Maxton, L.
Goldsmith, L. Morgan of Drefelin, B.
Gordon of Strathblane, L. Parekh, L.
Gould of Potternewton, B. Pendry, L.
Grocott, L. [Teller] Pitkeathley, B.
Harris of Haringey, L. Ramsay of Cartvale, B.
Hart of Chilton, L. Rea, L.
Haworth, L. Rendell of Babergh, B.
Hilton of Eggardon, B. Rooker, L.
Hollis of Heigham, B. Rosser, L.
Howie of Troon, L. Rowlands, L.
Hughes of Woodside, L. Royall of Blaisdon, B.
Hunt of Chesterton, L. Sainsbury of Turville, L.
Hunt of Kings Heath, L. Sawyer, L.
Irvine of Lairg, L. Scotland of Asthal, B.
Janner of Braunstone, L. Simon, V.
Jones, L. Smith of Leigh, L.
Layard, L. Symons of Vernham Dean, B.
Lea of Crondall, L. Taylor of Blackburn, L.
Leitch, L. Tomlinson, L.
Lockwood, B. Triesman, L.
Lofthouse of Pontefract, L. Truscott, L.
McIntosh of Haringey, L. Tunnicliffe, L.
McIntosh of Hudnall, B. Varley, L.
MacKenzie of Culkein, L. Wall of New Barnet, B.
McKenzie of Luton, L. Warner, L.
Masham of Ilton, B. Whitaker, B.
Mason of Barnsley, L. Wilkins, B.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.