I beg to move amendment No. 387, in

clause 83, page 50, line 33, at end insert

'or—

(ba) it is important to establishing whether or not a witness is to be believed.'.

With this it will be convenient to discuss

Amendment No. 435, in

clause 83, page 50, line 34, at end insert

'in relation to the credibility of any evidence which that person has provided and which relates to such a matter, or'.

The clause deals with the provisions for the admissibility of a non-defendant's bad character. As we discussed in respect of clause 81, it is common in courts for witnesses called by the prosecution, or by a co-defendant, to have their reputations attacked in order to discredit them. A salient feature of the clause is that the test and threshold for being allowed to cross-examine the character of a prosecution or co-defendant's witness is pitched at a different level from that relating to the defendant. The report of the Select Committee on Home Affairs commented on that. Paragraph 120 says:

''Under the Bill the threshold for admitting the defendant's previous convictions will generally be lower than the threshold for admitting the convictions of other witnesses.''

It then deals with the defendant's position, and continues:

''By contrast, a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case''—

Sitting suspended for a Division in the House.

On resuming—

In paragraph 120, the Home Affairs Select Committee says that, in contrast to the defendant's position,

''a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case. (The only other exceptions, for non-defendants, are explanatory evidence or where all parties consent).''

The Select Committee was very concerned about that, and making eminent sense stated at paragraph 122:

''We are concerned at the apparent inequality between the tests for admitting the defendant's bad character, as compared with a non-defendant's bad character. At the moment, a lower test of relevance seems to apply to defendants, than to non-defendants. In our view, there should be a standard test requiring the bad character evidence to have 'substantial probative value' in relation to a matter in issue, which is itself of substantial importance in the context of the case as a whole.''

I endorse that view. I am troubled by the two-tier system that we are introducing. I want to hear the Minister's justification for the imbalance that has deliberately been established. I have heard a bit about the background and I know that the Government have expressed grave concern about witnesses being deterred from giving evidence by having their past

raked up when that is not relevant to the case. However, I should have thought that even if we introduced an equivalence between the two categories, there would still be protection, just as it would not be possible to rake up an irrelevant previous conviction against a defendant. I am interested to understand the distinction that is being made.

That brings me to the two amendments. I do not think that the Minister is likely to disagree with what I suggested in an earlier debate about the standard reason for a defence barrister to want to cross-examine a prosecution witness or, for that matter, a co-defendant, about his past. Sometimes such cross-examination may run to the fact that someone else has committed the offence or it may be intended to explain something else about the case; but the bog standard reason, if I may use that expression, is that the defence wants to say that the witness is lying through his back teeth. They do not say that he is mistaken, or that although the witness says he saw the defendant he must have got that wrong. They want to say that the witness is telling an outright black lie, and to show reasons why he might do that.

To support that argument, permission has always been granted to cross-examine such a witness if he has previous convictions. The matter has rarely gone beyond that, in my experience. I suppose that it would be open to the court to permit cross-examination as to other, general bad character, but in my experience the decision usually goes to the fact that the witness has four or five convictions. He may be well known locally as someone who grasses to the police when it suits him. There may be all sorts of other issues to be raised to suggest that he is no better than the person whom he is trying to condemn, and that he may have his own motives, other than the public interest, in giving evidence.

One would hope that in those circumstances, clause 83(1) would cover the issue being joined between the witness and the defendant. I find it astonishing, given that the central issue in 90 per cent. of cases will be whether the witness is to be believed on a particular matter, that that is not expressly included in the provision as one of the grounds on which evidence of the witness's bad character can be adduced, and on which he can be cross-examined.

I am glad that two amendments have been selected. I admit that amendment No. 387 might give rise to an argument that the use of the word ''important'' is not sufficiently strong to ground the judge's discretion. I want to make it clear that if the defendant wanted to say that the witness was lying about some peripheral issue that was completely irrelevant to the main issue between the parties, the judge would be entitled to say, ''I am not going to allow you to cross-examine him as to character on that. It is wholly irrelevant to the issues that the jury must decide.''

However, the moment evidence of bad character becomes relevant, because it is important in establishing whether the witness can be believed, the right to cross-examine the witness on his previous bad character must be preserved. If we do not allow it, and

permit the defendant to be forbidden to do that, I have the gravest doubt that the measure will pass the scrutiny of the European convention on human rights. It is salient and central that someone should be allowed to challenge witness evidence brought against him. I know that we have some interesting, indeed, controversial, exceptions on matters such as previous sexual history, but the argument in that context is that that is not an issue of character of any relevance—although the hon. and learned Member for Redcar (Vera Baird), who is not in her place at the moment, made some interesting points about that.

Perhaps a witness says, ''I saw the defendant go into the shop''—that he is accused of burgling—''at 2.58 pm,'' and the defendant says, ''This man knows me very well; there cannot be a mistake. He is telling lies about me.'' His counsel may then want to explain what those lies are and why the man should not be believed. That evidence must be admitted. If clause 83 would prevent that, we must make jolly sure that it does not.

Amendment No. 435 provides an alternative route to achieve the same end. The Committee may prefer it. It introduces into subsection (1) the words

''in relation to the credibility of any evidence which that person has provided and which relates to such a matter''—

which would be a matter that was explanatory or had ''substantial probative value''. Somehow or another we must specify the likely circumstance in which the provision would be relevant. My anxiety is that there is something nebulous about the descriptions of evidence admissible under clause 83(1), which state that it is ''important explanatory evidence'' or that it ''has substantial probative value''. They are in the ''How long is piece of string?'' category. We must be a little more precise. If someone claims that a witness is lying on an issue that is relevant in the case, and is not peripheral to the matters that the jury must decide, the right to cross-examine on character must be explicitly preserved. If it is not, the right to a fair trial will go out of the window.

I shall briefly discuss some of the issues that the hon. Gentleman has rightly raised. If we go down the route that is proposed with respect to evidence of bad character, the most essential ingredient should be balance in the interests of justice and the proceedings. To an extent, clause 83 is an attempt to establish that balance, but as the hon. Gentleman has said, it does not do that. There is no equilibrium between the tests to be applied to evidence about a defendant and those to be applied to evidence about a non-defendant. That causes me the same concern as the hon. Gentleman.

I should be happier if a subsequent definitive clause were included explaining how to interpret clause 83(1)(b)(i), which refers to

''a matter in issue in the proceedings''.

I note that clause 87 qualifies the reference in the parallel provision, clause 84(1)(e), to a

''matter in issue between the defendant and the prosecution''.

Clause 88 provides a description of a

''matter in issue between the defendant and a co-defendant''

referred to in clause 84(1)(f). However, the Bill is entirely silent on the interpretation of

''a matter in issue in the proceedings''

as mentioned in clause 83.

The credibility of a witness or the fact that they may be supplying evidence that is a tissue of lies and for which there is a clear suggestion of a motive, given their record or the circumstances of their previous behaviour, are cogent matters that should be covered in the Bill. The amendments may not necessarily be the only way to achieve that objective, but the Minister would help the Committee and improve the legislation were he to find a way to ensure that what should be considered by a court in the interests of justice was considered by a court in the interests of justice.

Unfortunately, the hon. and learned Member for Redcar is not with us this afternoon, but she made a valid point this morning about the sexual history of a witness, to which I do not think the Minister quite did justice. I see no reason why that would necessarily be excluded under the clause. As the Committee knows, I am not a lawyer and I do not have the experience of other members of the Committee of working in a legal environment, but I understand that, following gross abuses of the system in the past by counsel for the defence, it is by rules and guidance that such evidence is no longer admissible. I am not clear, given that this legislation will surely replace that ruling and guidance by statute, how that is to be preserved.

It may help the hon. Gentleman and the Committee if I say that section 41 of the Youth Justice and Criminal Evidence Act 1999 sets out the circumstances in which evidence of a complainant's previous sexual history is admissible in trials for sexual offences. The Bill does not alter the situation under that Act, so where evidence about character is also evidence to which section 41 applies, it will need to meet the conditions of both sets of provisions.

I am grateful to the Minister, although I would be more comfortable if that cross-reference were explicit in the Bill. Rather simplistically, I believe that statutes should be understood by those who use them, whether or not they happen to be professionals in this sphere.

The hon. Gentleman is making a very fair point. It is difficult for anyone to cross-refer to such sections and, as he said, an important reference was made this morning. Does he agree that a full reference to section 41 of the Youth Justice and Criminal Evidence Act 1999 would be helpful to those of us who do not have it at our fingertips all the time, so that we could fully understand it and where it fitted into this legislation?

The hon. Gentleman makes a self-evidently important point. I hope that the Minister will take us further down that road by saying that it might be helpful to have an explicit reference in the Bill.

Dare I suggest that one reason why that reference is not explicit might be that there is an inherent contradiction between that and clause 81 on bad character? After the words

''might be viewed with disapproval by a reasonable person''

at the end of clause 81(1)(b), one would have to add, ''but not if it were subject to the Youth Justice and Criminal Evidence Act 1999.''

I absolutely agree. I am glad that we have teased this information out of the Minister, because there is clearly a need for a better definition and more explicit legislation. He has not satisfied the Committee simply by asserting that two apparently blatantly contradictory pieces of legislation can co-exist safely in such a sensitive area as defining what evidence may be admissible in criminal law. I hope that the Minister and his officials will consider that. Having said that, the hon. Member for Beaconsfield (Mr. Grieve) made an excellent case for the amendments, and it remains for the Committee to hear the Minister's reply.

There are a few more general points to make about the clause before I reply to the hon. Gentleman.

The clause sets out the circumstances in which evidence can be given about the bad character of a non-defendant. Parties might seek to introduce such evidence for various reasons such as the credibility of a witness, which, as the hon. Member for Beaconsfield pointed out, makes their version of the events less believable. He also pointed out that the defendant might want to suggest that another person was responsible for the crime and introduce evidence of their bad character to support their suggestion.

In common law, the bad character of a non-defendant is generally admissible, subject to the requirement for bare relevance. In practice, as we heard, the effect is to give parties free rein in attacking a witness's character. As the Law Commission said in its 2001 report, the current law often exposes

''witnesses to gratuitous and humiliating exposure of long-forgotten misconduct.''

According to the witness satisfaction survey 2000, 40 per cent. of witnesses did not want to give evidence again because of the intimidation or the experience of going to court and being cross-examined. That is something that the Committee should be concerned about, and that we should aim to address.

There is also a danger that the evidence will distort the issues in cases and so inhibit the search for truth and an accurate verdict. Only evidence that will clearly assist the court in determining the case should be admissible. The clause will offer substantial new protection to witnesses against unnecessarily wide-ranging and humiliating attacks on their character, and will ensure that only evidence that is clearly relevant is admissible. Therefore, evidence of a witness's bad character will be admissible only in carefully defined circumstances. It must have substantial probative value to matters at issue to which it is relevant. In the case of what is currently called background evidence, the evidence must be such that the jury or the court would find it impossible to understand other evidence without it, and that it would substantially affect their understanding of the case.

The clause sets clear and substantive limits to the admission of such evidence. Subsection (4) makes it clear that it will not be possible to introduce such evidence without the leave of the court. The current system offers little incentive for scrutinising the evidence before it is heard, but the clause ensures the lead requirement that its relevance must be clearly articulated and established by the court before it is admitted.

As we heard, the amendments would not have an identical effect. Amendment No. 387 would deal with evidence relating to specific and general credibility. Specific credibility is whether a person is to be believed in the circumstances of the case. Evidence relevant to that might include evidence that they have been bribed or had a grudge against the defendant. General credibility refers to whether a person is believable. Relevant evidence would include evidence of dishonesty and untrustworthiness. Amendment No. 435 is more focused on specific credibility alone.

The distinction is not important. I hope that I can reassure the hon. Member for Beaconsfield by saying that we agree that a defendant should be able to introduce evidence to test the credibility of a witness or of their evidence, as that might have an important impact on whether their testimony is believed. However, the amendment is unnecessary, as the proposed scheme already makes that sort of evidence admissible.

Clause 83(1)(b) enables evidence to be given that is probative of the matters at issue. The provision covers whether a witness is to be believed. Whether their evidence is accepted will have an important impact on whether the facts to which it relates have been proved. The evidence will therefore be admissible under the paragraph, provided that the conditions in it are met. They require in the first instance that the evidence have substantial value to the matter in issue. That would exclude trivial or marginal evidence of credibility that would have little bearing on a court's assessment of evidence or on the issues to which it relates.

I note that amendment No. 387 would require the evidence to be important to credibility, and subsection (1)(b) reflects that. Sub-paragraph (ii) says that evidence of bad character may be introduced ''if and only if'' it

''is of substantial importance in the context of the case as a whole''

That ensures that important evidence concerning credibility that would affect only a marginal issue in the case would not be admissible. That is not reflected in the amendment, but it is a condition that we consider to make sound sense.

Amendment No. 435 would require no particular degree of probative value of the evidence, and that reflects common law. However, the amendment would offer witnesses insubstantial protection against allegations that might affect their standing in a case. It would also allow evidence to be introduced that was of marginal value to the proceedings. We therefore consider that a requirement of substantial probative value is warranted. Evidence that is important in

establishing whether a witness or their testimony is to be believed can certainly be admitted under clause 83 as it stands, and therefore the amendment is unnecessary.

The higher relevance test was mentioned by the hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath). In the case of defendants, the critical test is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract it, is admitted. However, as only the defendant in the case is at risk of conviction, the test is apt for their protection only. Nevertheless, it is important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character; and it is to protect non-defendants from such attacks that a test of enhanced relevance is proposed.

The Minister has gone some way to satisfying me on witness credibility; I remain more concerned about the lack of equivalence between the two provisions. He made an interesting point: for defendants, the probative value of evidence must not be outweighed by the prejudicial effect. That is the basic test. Why, however, should the same test not be applied to witnesses? After all, clause 83 says that it should be possible to cross-examine a witness about their previous bad character if that has a probative effect, although one must consider the prejudicial effect that it would have on anybody to have their past bandied about in court when it could be irrelevant to the issues that the jury must consider. That is the protection that we are trying to provide.

I have sympathy with the Minister when he says that it is a matter of public concern if the frequency with which witnesses' previous bad character is introduced into court is such that the public begin to wonder about its relevance; and when it starts to deter people from giving evidence in court. Both are undesirable. Of course, one must accept that it may be inevitable that if a witness has an appallingly bad character he will be deterred from giving evidence by the fact that that bad character must come out in court in order that justice be done. The interests of the defendant must be favoured if we are to maintain a fair trial system. We cannot have a system in which the courts say, ''In order to protect this witness from adverse publicity and the humiliation of having his bad character revealed when he is giving evidence, it is necessary to conceal that bad character in a way that would be prejudicial to the defendant.'' I am sure that the Minister will agree that that would be utterly undesirable.

Oddly enough—or perhaps inevitably—I remain unpersuaded that the lack of equivalence is justified. The test of probative value as against prejudice applies just as well to the defendant as to any other witness. When judges sum up a case they often point out to the jurors that the defendant is no different from any other witness who has given evidence and that they should treat him no differently in assessing what he has said. Indeed, it should be a central feature of our courts

system that a witness is a witness whether he is a prosecution witness, a defence witness or anybody else.

One has only to go round the courts in this country to see how prosecution witnesses are treated completely differently from defence witnesses when it comes to the accommodation and attention that they are paid by the court staff. They are provided with discrete accommodation, nice magazines and endless supplies of coffee, while the poor old defence witness is relegated to some cubby-hole with graffiti on the walls in which he is detained until he goes into court to give evidence. This is quite a serious matter. Any visit to a magistrates court, which I recommend to the Minister, will reveal that fact very clearly.

I do not like this distinction. Ultimately, we are testing witnesses—whether defendant or another witness—and deciding what is acceptable. The probative against the prejudicial is an excellent test, which I heartily endorse. I certainly do not want witnesses to be cross-examined on their previous character when that is irrelevant. It is the judge's duty to prevent the harassment of witnesses. Prosecution or defence counsellors who do so should be pulled up. One problem over the years has been the judiciary's increasing reluctance to manage trials. That is the fault of the Court of Appeal, which has been allowing too many appeals. When a judge finally told a defence counsellor who was misbehaving that he could not ask a particular question, it was the grounds for an appeal that was subsequently allowed.

Counsel, particularly defence counsel, have abused their rights to cross-examine. In the old days, judges would have pulled them up, but that no longer happens, which is unfortunate. I am not sure that the proposed devices do not contain seriously damaging flaws. Although I reserve my position on the clause, which I will consider again in a moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.