I beg to move amendment No. 325, in

clause 84, page 51, line 29, leave out 'bad character' and insert 'previous convictions'.

With this it will be convenient to discuss the following:

Amendment No. 471, in

clause 84, page 51, line 29, after 'character', insert

'which is of direct relevance to issues in a particular case'.

I think that the Committee will agree that our major debates today concern this clause. The Home Affairs Committee, which rightly said that the issue of bad character was the most controversial part of the Bill, identified an area that has troubled us from the beginning of the debate this morning. ''Bad character'' is defined in clause 81, and we deal now with the bad character of the defendant and its admissibility in court proceedings. With amendment

No. 325 we are trying, yet again, to restrict the definition of bad character to the issue of previous convictions. There are many reasons for wishing to do so.

At some stage, the Minister must explain why on Monday, Wednesday and Friday he applauds the work of the Home Affairs Committee and says that it was right, but on Tuesday, Thursday and Saturday he takes the view that it has come up with the wrong answer. He knows as well as I do that it is utterly unhappy with the Government's proposals.

We expounded arguments in this morning's debate on why bad character should be limited to previous convictions. Let us dwell on the issue for a moment, and transport the Committee to the Crown court where the judge is summing up the case for the jury. While the defendant has been giving evidence, his barrister has said to him, ''Now, Mr. Smith, you are 50 years old, you have never been convicted of any criminal offence, and you are therefore a man of good character. You also do a lot of good work for your church and for other people.'' The defendant has agreed with all those statements. The judge then says to the jury at the end of the trial that the defendant is a man of good character, not just because he has no convictions recorded against him, but because witnesses have spoken of his positive qualities. That is a standard form of direction of the jury, approved by the Court of Appeal.

Good character cannot by itself provide a defence to a criminal charge, but it is evidence in the defendant's favour that a court should take into account, and for two reasons. First, the defendant has given evidence and, as with any man of good character, that supports his credibility. Secondly, the fact that he is of good character may mean that he is less likely than otherwise might be so to commit the crime now—the issue of propensity.

An important note attached to my briefing states:

''If the judge rules that a defendant should be treated as a man of good character even though strictly speaking he is not (for example because he has spent convictions), the full direction on good character should be given to the jury.''

Ponder that, Mr. Cran, and compare it with that with which we are currently faced.

The clause provides, in paragraph (g), that evidence of the defendant's bad character should be admissible if

''it is evidence to correct a false impression given by the defendant''.

Is the defendant giving a false impression when, through his counsel, he answers, ''Yes'' to the question, ''Is it right that you are a man of good character and have never been convicted of any criminal offence?'' Where is the protection for the defendant? One hastens to look at subsection (3), which states that the court must not admit evidence where it is prejudicial. However, that does not apply to the issue of correcting a false impression given by the defendant.

The wide definition of character includes, as we have heard, the person who has tended to show that he

''is disposed to behave in a way that . . . might be viewed with disapproval.''

The hypothetical person standing in the dock to whom I have referred might have been subject to a civil injunction concerning a matrimonial or neighbourly dispute, to a bind-over in any number of courts, or to an antisocial behaviour order, which is not a criminal conviction.

The Minister is saying that from the moment the Bill becomes law, the person who has been bound over, or been subject to an injunction or an antisocial behaviour order, but who has no criminal conviction against him, cannot in response in court to his barrister's saying, ''Is it right, Mr. Smith, that you have never been convicted of any offence, have you, and are therefore a man of good character'', say ''Yes.'' That is astonishing.

The direction that is currently given by the court in relation to bad character is interesting. The judge is obliged to say to the jury:

''You have heard that the defendant has previous convictions (for x, y, z). What is the relevance of the defendant's convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has previous convictions.''

These are the key words:

''His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now.''

The first part bears repetition. His convictions

''are not relevant at all to the likelihood of his having committed the offence''.

They are relevant only as regards his credibility and have nothing to do with propensity. The Minister is going to have to answer this question. The wide-ranging first line of the clause refers to the admissibility of the defendant's bad character, even if it is limited to previous convictions, as it should be for the reasons that I have given. Is admissibility of bad character relevant to the likelihood of his having committed the offence? Is it relevant to propensity as opposed to credibility?

I want to conclude, because we need to have serious debates about a series of groups of amendments. My proposition is that the scales are now tilting against the defendant. The presumption of innocence that we have held very dear for very long is gradually being chipped away at. It is odd, but in most jury trials—this is really anecdotal—the defendant will have had previous convictions. It is rare for someone to come before the court with no previous convictions. The old presumption of innocence, whereby the defendant has to be tried on the evidence that is before the court, is disappearing slightly. It will be replaced.

Peter Rook QC, Chairman of the Criminal Bar Association, spoke to the Home Affairs Committee about the problem of a weak identity case. Let us take the case of a person who is charged with burglary. The identification evidence is not very strong but the chap has a string of previous convictions and the police take their eye off the ball. The jury immediately becomes

deflected from the real issue—the evidence in the case against the man—because there are previous convictions. If the issue of previous convictions raises problems, to widen it to bad character leads to an enormous potential for prejudice against the defendant.

It used to be said that if one did not have a criminal conviction, that was much to one's credit, and it was to be said in one's favour in open court. It can no longer be said. It is as simple as that, because as soon as someone starts putting himself forward as a person of good character, they can get him under paragraph (g) because he has given a false impression. The problem is that there is no way out of that. That is the reason for the amendment, and I hope that it prompts a stimulating and furious debate.

Does the hon. Gentleman think that it is right that a defendant should be able to give a false impression to the jury, and that the prosecution should not be allowed to contradict that impression?

I respect the question, but what is a false impression? I believe that a man or a woman who stands before a court never having been convicted of a criminal offence is a person of good character. That has been the judicial situation for hundreds of years. The directions issued by the Judicial Studies Board on what is to be said to the jury have not been dreamt up over night; they have been laid out over a long time and represent a great tradition in our law. I believe that a person should be able to say, ''Yes, I am of good character'', and not have it thrown back at him that he has done something wrong. It is not fair to give civil penalties the same status as criminal convictions. The defendant should not be subject to the vagaries of being charged in contradiction to his assertion that he is a man of good character with no convictions but, in contradiction to that, be charged with behaving in a way that might be viewed with disapproval by a reasonable person.

I am following my hon. Friend's argument, but I have one concern. Will he clarify how serious an offence must be for someone to be bound over to keep the peace, and is it possible that people can be bound over repeatedly? If so, the point that he makes will not have as much force. Not being an expert, I am not aware of how serious an offence must be for someone to be bound over.

My hon. Friend raises a good point. The best answer is that by and large the activities for which one can be bound over to keep the peace are generally speaking fairly low level—the sort of behaviour that might otherwise be at the bottom end of public order offences on the streets. Being bound over is not a conviction. When a bind-over is given, the case is marked on the court register as having been dismissed. However, I have known it to be done in cases of fairly low-level violence. I have occasionally known it to be done in cases beyond common assault and of actual bodily harm.

While my hon. Friend was talking, I remembered when I first came across the expression.

For many years, my mother was a magistrate in Newbury, where the Greenham common protesters were frequently bound over and the cases dismissed. That example might help my hon. Friend. If one of those protesters, who had done nothing but protest, came before a court on another offence, he could not be of good character—something that Labour Members, whose CND badges are now safely in their pockets, may feel uneasy about.

My hon. Friend is absolutely right; those are exactly the sort of people who I mean.

I have made by arguments, and in a fair world the amendment would be accepted.

The hon. Member for Witney (Mr. Cameron) is absolutely right that we are dealing with the presumption of innocence. We are coupling that with the presumption of admissibility, which we shall be debating later. When discussing clause 81 and amendment No. 469—the amendment covers some of the same ground as amendment No. 325—the impression was given that we should not mind about the width, the latitude and the rather inchoate nature of the definition under clause 81, because it would be focused by the strong lens of clause 84, which would ensure that nothing irrelevant or unproved would pass the test. Taken together, however, clauses 81 and 84 suggest quite the opposite, and evidence that is not the result of a conviction, or which may not be directly relevant to the points at issue, could quite properly be adduced as an indication of bad character. That is what gives us such cause for concern.

As the hon. Member for Woking (Mr. Malins) usefully argued, someone may have been charged with a separate offence that is neither relevant to the matter in hand nor on the same indictment, and evidence that a court had yet to test could be introduced as an indication of bad character. That gives me great cause for concern.

I am also concerned by the width of the examples that the Minister gave when we discussed adducing cautions. I have a real problem with cautions. They are a useful mechanism, but they are not subject to a legitimacy test and can be administered on the assertion of a police officer. I recently dealt with the case of a young man who had been cautioned by the chief constable of a neighbouring constabulary. He contested the caution because he felt that it was inappropriate, but it remains. There is no way of deleting it or of testing it in the courts—at least, there was none that he was aware of when he was cautioned. Ever since, he has protested that it should not remain.

I wrote to the chief constable, and he replied, arguing, ''Never mind, it won't show up in an employment application, because it doesn't count as a record in that sense. You needn't worry too much.'' It might, however, be brought as an example of bad character in court proceedings to demonstrate that that young man is not to be trusted because a constabulary once cautioned him. That could happen even though he asserts that he did not commit the offence and the caution has not been tested in court. That would give me great cause for concern.

But is it not the case that a caution is administered only when the person admits responsibility?

Sitting suspended for a Division in the House.

On resuming—

I was about to respond to the hon. Member for Wrexham (Ian Lucas), who has the advantage of knowing the law. I accept his basic point that there must be an admission of guilt, but I would make a distinction. Individuals who receive a caution usually have no legal representation, unless they happen to have a lawyer in tow. As far as I am aware—I am open to correction—there is not necessarily agreement on the terms under which cautions are administered, so they cannot subsequently be challenged.

Potential defendants often welcome cautions, because they do not involve going to court and possibly receiving a criminal record. As an early and easy means of disposal, they are used more often than not to avoid criminal proceedings. They should not, therefore, be admissible as evidence of bad character in the sense used in the Bill.

There are many other cases, and I do not want to rest my argument on the issue of cautions. I understand the point made by the hon. Member for Woking. I use cautions as an example simply because the Minister identified them as possible evidence of bad character under clause 81. Under clause 84, that would get through the net, as would a lot of other evidence that might be either civil in character or somewhat distant from the precise terms of the case in question, and for which the relevance test in subsection (1)(e) is helpful, although that needs to be strengthened. That is why my hon. Friend the Member for Southwark, North and Bermondsey and I tabled amendment No. 471.

I imagine that the Minister's response to the amendment from the hon. Member for Woking will be to say that it takes us further back than we presently are in relation to a similar test that is used under current proceedings. I could understand his resisting that amendment for those reasons. Nevertheless, the filter is open too wide now, and too much will get through. Until we can narrow the application of clause 84, we are right to try to do the same under clause 81. Only by achieving a correct equilibrium between the provisions in clauses 81, 84, and 83 will there be any possibility of a fair trial, on which we had always depended.

Could the hon. Gentleman say which cases he thinks would fall outwith subsection (1)(e) and therefore need to be covered by his amendment?

I do not think that the issue is to do with cases so much as the breadth of evidence that could be adduced, which amendment No. 471 could assist in filtering out.

If the hon. Gentleman wants to talk about evidence, not cases, what evidence does he think would pass through the filter of subsection (1)(e), but be caught by amendment No. 471?

My concern is that, if someone had a long record of committing perjury and that was adduced as a reason for not accepting his evidence, which was contested in the trial, it would be relevant history of bad character. However, if it was wider than that—if that person was a bad egg generally or not entirely trustworthy, for example—it is doubtful whether that would necessarily be relevant, although it could be relevant to a matter in the trial. I simply feel that the evidence needs to be both specifically relevant and generally relevant in order to pass an adequate test.

I hope that that makes some sense to the hon. Gentleman. We shall not fall out over that point, as I do not think that amendment No. 471 is the strongest amendment that we shall move this afternoon. It is merely an attempt to elicit a response from the Minister on the question of how we can ensure that any evidence so used is directly relevant to the issues of the case. I believe that there is a lacuna in the provisions.

I just wonder whether the lacuna might be that, as matters stand, evidence could be admitted in subsection (1) under paragraphs (a), (b), (c), (d), (e), (f), (g) or (h) without being relevant at all.

The hon. Gentleman has helped me a great deal, and it is always usepful to have assistance from whatever quarter. That is a sensible way forward. Frankly, without that relevance, the evidence should not be used in the trial. It could be argued that there are other filters, but I cannot find them. I do not want to pre-empt later discussions about the requirement of the leave of the court, but there should be the highest possible safeguards to prevent the introduction of irrelevant material, which would be deeply prejudicial to the case and to the defendant. That would not be in the interests of justice; it would be an exercise in establishing the all-round bad character of a defendant in circumstances that would not allow for a fair trial.

It is difficult to compartmentalise one's arguments, even within clause 84, which is governed by clauses 85 to 90. Those clauses go into considerable detail about what constitutes the various matters listed in paragraphs (a) to (h) of clause 84(1). We are slowly feeling our way to the nub of some of the issues, although I detect a tendency to slip away from it because of the mischief of clause 86 and the matter of propensity.

As my hon. Friend the Member for Woking explained, the traditional rule is that apart from restricted exceptions in the case of similar fact evidence, evidence in relation to a defendant's character refers only to his credibility. My hon. Friend read out the direction that is given to the jury, which will presumably have to be substantially changed after the Bill is enacted. I suspect that in most cases applications will still be made under that rule, but key paragraphs of the clause are not protected by

subsection (3), which balances the adverse effect on the fairness of the proceedings, giving a discretion for matters not to be admitted. Read in the light of that rule, clause 84 gives rise to serious concern.

The issue of bind-overs was mentioned, and I shall take an example from personal experience of a case in which the defendant was charged with robbery, which is rather a serious offence. He was brought up in front of the red judge, at what used to be the assizes—a Crown court in Shropshire. The allegation was that he had robbed two 14-year-old boys of their watches, but the facts were that the two boys, having gone on a fishing trip, had seen the defendant's vehicle parked by the side of the lake and committed an act of criminal damage on the vehicle. They smashed the wing mirrors and kicked and dented the side.

The defendant came back from his afternoon's fishing and was very angry about the damage to his vehicle. He threatened to hit the two boys with a stick and then took their watches from them in compensatory payment for the damage they had caused to his vehicle, exercising what I suspect he thought was a bit of rough justice. He was a man of impeccably good character of whom everybody spoke highly, and he lived in modest circumstances. The trial came up in front of the judge, who took one look at the papers and roared with laughter. He summoned the boys to court and bound them over to keep the peace and be of good behaviour for 12 months.

If, two years later, that person were to come to court on any offence, what would be the significance of that episode under the present rules? The answer is that it would be regarded as completely irrelevant. He would be treated as a person of good character. He could say in the witness box that he was a man of good character with no previous convictions, and I am sure that the prosecutor would not try to gainsay it. However, clause 84 opens the possibility of that episode having significance. More interestingly, subsections (1)(c) and (g) will allow that to take place without bringing into play the adverse effect protection of the fairness of the proceedings, which would allow the judge to prevent it happening.

If the Minister were minded to include the protection of subsection (3) for all the paragraphs in subsection (1), I would be much happier with the proposals. As I am trying to be constructive, he may want to reflect on that, and I would be interested to learn why that could not be done. One must accept that if one gives people the opportunity to exploit a new rule, it will be exploited. Prosecutors will use it, under pressure from the CPS, so the idea that the old rule will prevail except in exceptional circumstances is flawed. If the court has no ability to fetter the prosecutor's discretion in giving a false impression, evidence about something that is profoundly irrelevant may be admitted. The Minister would go some way towards satisfying us by reviewing the protection afforded by subsection (3) and extending it to all the categories in paragraphs (a) to (h) in subsection (1).

Does the hon. Gentleman agree that of those categories in subsections (1)(a) to (h), the most significant is in paragraph (d)? It is implicit that the provision envisages that each conviction in the

category is prima facie relevant to another alleged offence in the same category, while in the other paragraphs, it might be argued that the words make it clear that the cases are prima facie relevant.

The hon. Gentleman makes a good point. If I have understood the drafting correctly, a previous conviction of an offence of the same description is automatically treated as relevant and therefore admissible. However, that is still subject to the adverse effect protection of subsection (3), which allows the judge, in balancing out the effect on the trial's fairness, to rule that information inadmissible. That is a powerful protection, which already exists, although in a limited form.

I shall try to limit my remarks about clause 87 before we get to it, but I think that it is dreadful. It is about propensity, which has poisoned the entire wording and structure of clause 84. If we got rid of propensity, it would be easier to make sense of clause 84, and it is the propensity clause, to which I object strongly and strenuously as a matter of principle, that gives me so much trouble.

I shall try to break the arguments down, because we cannot debate all the clauses rolled into one. At this stage, it would help if the balancing provisions of adverse effect protection applied to all. Otherwise, some circumstances falling outside those balancing provisions could fall within their scope, thereby affecting fairness. I am pointing to one way of getting through the morass of clause 84, and I await the Minister's response.

I hope that I made it clear earlier that I am not opposed in principle to the Government's objectives. A strong argument can be made for codifying present law, and the Minister prayed in aid Lord Justice Auld's analysis, which confirmed its haphazard basis. It would do no harm to bring the law together into a code that would be more readily understandable to everyone, particularly the public.

I do not set my face against the wider admission of previous convictions in criminal cases, but it involves risks and we must ensure that it conforms to the interests of justice. I share the concerns of the Home Affairs Committee on that score. It may assist the Committee if I cited paragraph 116 of its report, which makes the case clearly and succinctly:

''We have some difficulty with the proposal to allow the defendant's similar previous convictions to be automatically admitted at trial. In the light of the Oxford Study, we believe that these provisions could lead to miscarriages of justice in some cases. In particular, we are concerned at the prospect of using a defendant's previous record to prop up what might otherwise be a weak case. We are also concerned that this will increase the temptation for the police to pursue the 'usual suspects'.''

That is a fine summary of the concerns expressed by criminal law practitioners and others to the Home Affairs Committee. The prejudicial effect of admitting previous convictions, particularly in highly emotive cases, is a major anxiety. A further worry is the risk that the police would pursue people with previous convictions for the same type of offence.

We are discussing a highly significant change in the law. As it stands—though purists may pick holes in the

argument—evidence of previous convictions is generally excluded, unless one of a range of exceptions applies. Under the Bill, particularly clause 84(1)(d), the general presumption is to admit evidence of previous convictions. Indeed, without some filter, such evidence will routinely—the Select Committee used the term ''automatically''—come before the court and the jury.

It is crucial that judges possess the discretion to ensure that proceedings remain fair. Under subsection (3):

''The court must not admit evidence under subsection (1)(d), (e) or (h) if . . . 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.''

I share the concerns of the Select Committee that, even if the prosecution case were fairly weak, evidence of the defendant's previous convictions could unduly influence members of the jury and prevent them from examining carefully enough the actual evidence presented. It would help me—and would have helped the Select Committee—if the Minister provided some guidance on the operation of subsection (3). Could judges, in deciding whether it was fair to admit previous convictions, take a view on the prosecution evidence, particularly if it would otherwise be weak? It would be helpful to have that clarified. I think that Lord Falconer gave evidence of that general tenor to the Select Committee, but it would be helpful to get something on the record from the Minister now.

I want to clarify something, following what my hon. Friend has said. What is remarkable about subsection (3) is that it allows the court not to admit evidence under certain conditions in clause 84, but not all of them. A key point for the Minister to make clear is why the court can say no in some cases, but not others.

My hon. Friend makes a very good point. The Minister must say why only part of clause 84 applies. Of course, subsection (1)(b) covers the case in which

''the evidence is adduced by the defendant himself''.

In addition, how are the courts to approach subsection (1)(d), which routinely admits evidence of previous convictions? How will judges exercise their discretion under subsection (3) as far as that is concerned? Will they be alive to the risks that that may pose when there is very weak prosecution evidence, such as the risk that the jury will be unduly influenced by evidence of previous convictions?

This has been an extremely useful debate. We shall come next to a substantial number of amendments, and I shall respond to some points, including those raised by the hon. Member for Hertsmere (Mr. Clappison), at that stage, if that is acceptable to hon. Members. It is not that I do not intend to address the very pertinent points and questions that have been raised; it is just that it would be more appropriate to deal with them then.

I bow to the great knowledge of the hon. Member for Woking in these matters because of his legal experience, and he will know that a defendant can be

cross-examined on his bad character if he has claimed to be of good character. Those circumstances are covered by subsection (1)(g). That issue already arises in relation to the law, and the law deals with it.

The direction that evidence is admitted in relation to credibility alone is used only when the evidence is admitted under the Criminal Evidence Act 1898: that is, if the defendant has claimed good character or attacked a witness. It is not used if the evidence is admitted under the similar fact rule, when the evidence is admitted specifically on the question of guilt.

The hon. Gentleman helpfully read out two directions, and described the hypothetical situation of the man in the witness box who answers the questions by saying, ''Yes, I have no previous convictions, and yes I am a man of good character.'' The intervention from the hon. Member for Witney helped us to understand precisely why the change should be made, because in answer to his question, the hon. Member for Woking acknowledged that, in his experience, it would be possible for a person to be cautioned for an incident of violence, and a caution involves that person admitting the offence, as my hon. Friend the Member for Wrexham pointed out.

Let us say that the mythical man in the dock has had two cautions for violence in the last eight months and is now charged with grievous bodily harm. Even though he was not convicted, should he able to say that he is a man of good character or that he has never been in trouble with the law, and not run the risk that the fact that he has been cautioned twice for violence will be admitted? My argument is that that defies common sense—that is a non-legal term—and common sense is part of what the change is about. It defies common sense to say that that circumstance should arise. That is unacceptable, which is why the change needs to be made.

The Minister seems to be saying that if the mythical defendant said that he had not been in trouble with the law, that would trigger the existing common-law provision that subsection (1)(g) puts into force: namely,

''evidence to correct a false impression given by the defendant''.

If the defendant gave a false impression by saying that he had not been in trouble with the law when in fact he had been cautioned, that would be covered by existing legislation.

Indeed. It was the hon. Member for Woking who expressed grievous concern that subsection (1)(g) could be used to prevent the mythical person in the dock from saying that he was a man of good character.

I shall try to pull the strands together and help the Minister. We return to the point about propensity. Under the current rules, it would be entirely acceptable to rest the defendant's credibility simply on his character, as long as he has said that he has no previous convictions. If he gave a misleading impression, it might be corrected. However, those previous few cautions are likely to be dragged in under the new rules to show a propensity to violence. It is

difficult to propose coherent new rules because of what I call the poison that the propensity point introduces.

The hon. Gentleman's analysis of how the Bill would change the situation is absolutely right. He describes as ''poison'' the proposal that the jury should be allowed to hear that a person has had two cautions for acts of violence in the previous six months. I disagree. That is not poison, but information that the jury should have. The issue does relate to propensity, and it is right that the jury should be able to consider that evidence with all the other evidence. In the end, we should trust the jury to reach the right verdict.

The Minister is being very reasonable. I am not too fussed about cautions, although I know that there are sometimes arguments about them. I am, however, fussed about bind-overs, which have nothing to do with a criminal offence. Does the Minister accept that many people who would have received the benefit of a direction on good character will no longer do so?

That is correct. The directions will have to change. The hon. Gentleman helpfully read out the second direction, under which the court may be entitled to hear evidence of bad character if it is relevant and admissible. It will not be sufficient to direct a jury to consider bad character evidence only in relation to credibility because of the way in which it was admitted, when it clearly relates to propensity. Hence my argument that juries should be trusted to give it the weight that it deserves.

As has been recognised, the other difficulty of the amendment is that it would greatly restrict the relevant evidence that could be presented in court. The most routine application of the provisions may involve previous convictions, but other bad character evidence can have high probity value. Under the hon. Gentleman's amendment, if a defendant were on trial for numerous similar offences arising from independent allegations, the evidence of one camp could not be used to support another, no matter how relevant, as the defendant would not have been convicted of that conduct. Instead, the jury would be directed to consider all the cases completely separately. Cases such as this represent an important part of the similar fact rule, so a restriction such as that proposed by the amendment would be a highly retrograde step, as highlighted by the cases of Boardman or DPP v. P, which were landmarks in the development of law on bad character evidence.

It is remiss of me not to have paid tribute at this late stage to my extremely able officials who have supported my ministerial colleagues and me on the Bill. For the education of the Committee, they have gone back even further and have drawn my attention to the case of Makin, which is the foundation of much of the current law in this area. The case involved a charge of murdering a baby. Evidence that the bodies of 13 other babies had been found buried in the garden of the defendant's house and previous properties was admissible to rebut a defence of accidental death, yet the defendant had not been convicted of any offence in connection with the further 13 babies. That evidence would be excluded by the hon. Gentleman's

amendment. On reflection, he probably will not press the amendment to a Division.

I turn now to amendment No. 471, to which the hon. Member for Somerton and Frome spoke. That amendment would insert the general requirement that evidence of a defendant's bad character should be of direct relevance to the issues in the case. We do not agree that that would helpful. A requirement for relevance to the issues is already clearly referred to in the various heads of admissibility, where that issue is to the fore. For instance, it is mentioned explicitly in paragraphs (e) and (f)—evidence that is relevant to issues between prosecution and defence and between co-defendants. It is the basis for paragraph (d)—the admission of convictions for the same or similar offences because those convictions already have the relevance that the amendment seeks to clarify. Where they do not, they are capable of exclusion under subsection (3).

On the other hand, the amendment would cause some confusion in the case of explanatory evidence. For example, clause 85 requires the evidence to be such that without it the court or jury would find it impossible or difficult properly to understand other evidence in the case. It is not clear what a requirement for direct relevance would add in those circumstances, other than confusion as to whether the evidence needed to meet some other, further requirement. There might also be difficulties with describing corrective evidence or evidence admissible in consequence of attacking a witness or other person as directly relevant to the issues in the case.

None the less, the admission of such evidence serves a valuable function. It ensures that the jury receives a balanced picture of the character of the defendant if he tries to give a misleading impression of himself or to further his case through attacking a witness. In those circumstances, the bad character evidence is of clear value to the proceedings, and there are sound reasons for enabling it to be admissible.

The amendment reflects the concern that irrelevant bad character information should not be adduced. I welcome that. However, subsection (3) makes ample and appropriate provision to ensure that evidence with no or little probative value that is otherwise likely to be prejudicial to the defendant is excluded. We believe that that strikes the right balance for admission of such evidence, rather than the blanket requirement of direct relevance, which I think would tend to confuse.

If you think my arguments have been good so far, Mr. Cran, you should hear the later ones. It is important that we make progress on the clause.

My hon. Friend the Member for Beaconsfield (Mr. Grieve) was right to say that the Minister would gain higher esteem—he already has our affection—if he considered giving the same protection in relation to paragraph (g) as is afforded to other matters by subsection (3). We would be terribly pleased if he did. The Minister's response did not satisfy me entirely, but we have other matters to consider. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 472, in

clause 84, page 51, line 30, leave out

'admissible if, but only if'

and insert 'not admissible, unless'.

With this it will be convenient to discuss the following:

Amendment No. 436, in

clause 84, page 51, line 30, after 'admissible', insert

'without leave of the court'.

Amendment No. 437, in

clause 84, page 51, line 31, at end insert

', or

(aa) it is relevant to a matter in issue between the defendant and a co-defendant'.

Amendment No. 438, in

clause 84, page 51, line 34, at end insert—

'(1A) In criminal proceedings evidence of the defendant's bad character is admissible with leave of the court if it is relevant to a matter in issue in the proceedings and—'.

Amendment No. 439, in

clause 84, page 51, line 41, leave out paragraph (f).

Amendment No. 440, in

clause 84, page 51, line 45, leave out 'subsection (1)' and insert 'subsections (1) and (1A)'.

Amendment No. 441, in

clause 84, page 52, line 1, leave out '(d), (e) or (h)' and insert

'(b) or (aa) or (1A)'.

Amendment No. 367, in

clause 84, page 52, line 1, after '(e)', insert ', (f), (g)'.

Amendment No. 368, in

clause 84, page 52, line 1, leave out

'on an application by the defendant to exclude it'.

Amendment No. 442, in

clause 84, page 52, line 1, at end insert

'application for leave to admit it, or an'.

Amendment No. 443, in

clause 84, page 52, line 5, after 'to', insert

'admit evidence under subsection (1A) or'.

Amendment No. 369, in

clause 84, page 52, line 8, at end insert—

'(4A) Except where subsection (1)(a) applies, evidence of the bad character of the defendant must not be given without the leave of the court.'.

Amendment No. 447, in

clause 88, page 52, line 41, leave out '(f)' and insert '(aa)'.

Amendment No. 448, in

clause 88, page 53, line 7, leave out '(f)' and insert '(aa)'.

Amendment No. 450, in

clause 89, page 53, line 39, leave out 'is admissible' and insert 'may be admitted'.

Amendment No. 462, in

clause 94, page 55, line 38, leave out 'admissible' and insert 'to be admitted'.

This is a desperately important group of amendments. The nub of our argument on clause 84 will probably take place during our debate on this

rather extensive string of amendments. I do not intend to address the precise outcome of the amendments tabled by the hon. Member for Beaconsfield, although I shall deal with the issues raised. This is an intricate and interlocking series of amendments, and if I were to intrude on some of them, I might get hopelessly lost.

I shall start with amendment No. 472. We have already debated the problem that the previous presumption that evidence of bad character will not be adduced as evidence at a trial except in certain specified circumstances in which it is in the interests of justice has been reversed. The Minister has been open about it. He said in an earlier debate that the view of the Government was that the polarity of the presumption should be reversed, and that is what the Bill does.

I have yet to hear an argument for that reversal. The Minister merely asserted that that was the Government's view. We have already heard that others, who are much more expert in the area than I, have looked at it and, although they saw no reason to reverse the presumption, saw a strong argument for codification. We have all accepted that that is helpful, as is making the provisions more explicit.

What is the effect of that reversal? There is a philosophical aspect to it: a fair trial is dependent on irrelevant material—including the background of a defendant—not being adduced unless there are exceptional specific reasons for bringing it forward. That includes previous misconduct or misbehaviour that has not led to conviction, which we have already debated. There are times when such information is necessary for a jury to reach a satisfactory conclusion, but they should be the exception, not a presumption from the start. Similarly, previous acquittals should not be a means of establishing guilt, unless there are specific reasons for bringing forward material from such acquittals—which is dealt with as an exceptional circumstance within the Bill.

Those who are concerned about the issue, outside Parliament as well as on this Committee, fear that by reversing the polarity, we are in danger of eroding the presumption of innocence, albeit we have not yet done so. We must take the matter seriously. That is why the amendment turns the material into its opposite and reciprocal form. It does not change the provisions, other than to say that such evidence would not be admissible unless the circumstances were satisfied. That is the philosophical view in terms of jurisprudence.

There is also a practical argument. What will happen in court when the prosecution bring forward such evidence and it is challenged by the defence? One of the arguments for the introduction of the Bill, and for the Government's general attitude to the matter, is to speed up and make more efficient and effective the judicial process. However, because of the terms in which the Bill is couched, it will have the reverse effect. It will slow things down because it starts from the presumption that evidence will be admitted. If such

evidence is challenged by defence lawyers, it has to be considered before anything else can happen; that will slow matters down.

Consider what will happen in a magistrates court. Magistrates determine both law and fact. Therefore, they have to hear applications in the first instance, in order to decide whether the evidence is admissible. If they properly decide, under the terms of this and subsequent clauses, that it is not admissible, they will have to remove from their minds all recollection of the previous convictions or evidence of bad character before determining the guilt or otherwise of the defendant. That puts magistrates in a difficult position, but what does it do in an either way case? If I were a defendant, or advising one, I would say, do not go for the magistrates court option. As a result, more elective trials will turn up in the Crown courts. That will further clog up the system, cost more, take more time and achieve exactly the reverse of the reform of the judicial system that the Minister wants.

A rare defence counsel will not object to that sort of evidence being adduced. The capacity and the mechanism are available, so counsel would no doubt feel remiss in their duty if they did not do so; the defendant would certainly feel inadequately served by a defence counsel who did not mount such challenges. Unintentionally, but almost inevitably, a blockage has been built into the system. It is avoidable if one starts from the opposite polarity. I hope that the Minister will consider that seriously.

I should preface my remarks with an apology. I am, for want of a better expression, double booked this afternoon, because I had to serve on the Standing Committee considering the order whose short title is the Access to Justice (Northern Ireland) Order.

I draw the attention of hon. Members to a printout from the website of the Lord Chancellor's Department. It is about research carried out in 2000 by Professor Sally Lloyd-Bostock on the effects on magistrates of learning that a defendant has a previous conviction. I drew this to the Minister's attention on Second Reading, and he kindly replied. It says:

''The results showed clearly that the magistrates' ratings of likely guilt were significantly affected by information about the defendant's prior record.''

Similarly, it says:

''Most magistrates thought that neither magistrates nor juries should learn about previous convictions until after the verdict, and felt that the information was dangerously biasing.''

Would the hon. Gentleman like to comment?

I am most grateful to the hon. Lady. I sympathise with her for being double booked. I missed considering that statutory instrument due to my duties here, and I am glad to hear that it was in safe hands. Her point is fundamental; I agree entirely. With that clear evidence from magistrates, it is hard to understand how the Minister can assert that the process will result in a fair trial system.

That point will not be lost on defence counsel up and down the country. Either way trials will be bound to go to the Crown court because the view will be that it will be possible to express views in that arena rather

than in the magistrates court, where the judgment of the magistrates is bound to be affected, irrespective of whether the evidence is admissible, because they have had to hear it first in order to determine whether it is admissible. That is crucial: as a result of the mechanisms proposed in the Bill, magistrates will not hear just that which is relevant or of value in a case, but that which they have determined to be irrelevant and of no value.

Amendment No. 367 returns to the point raised by the hon. Members for Witney (Mr. Cameron) and for Beaconsfield in the debate on the previous group of amendments. I shall not say that the safeguards that apply are eminently sensible because we have criticisms of the entire structure of the clause. However, they are necessary in the context of the clause's architecture. Therefore, I find it inexplicable that they do not apply to paragraphs (f) and (g).

Are we no longer interested in the prejudicial effect on the fairness of the proceedings, when those are the grounds on which the matters are adduced? Of course we are, and I assume that the Minister is too. He must feel that the matter is dealt with elsewhere in the Bill. It seems an extraordinary exclusion. Some of the grounds under subsection (1) to admit evidence of the defendant's bad character are perfectly sensible, but those are challengeable and may have a strongly prejudicial effect on a defendant's interests. Therefore, the same safeguards should apply.

I move on to amendment No. 368. Why should the defendant have to apply for exclusion in the first instance and not the court? Should not the court, in judging the admissibility of the evidence, consider whether the evidence would have such an adverse effect on the fairness of proceedings that it should not be admitted? Would the court not be entirely failing in its duty to the defendant if it did not make that consideration? If so, why should it require the defendant's application to trigger that elemental part of the consideration of the court in determining whether to admit evidence?

Amendment No. 369 takes us back to our old friend equivalence. If we are to have equivalent structures and procedures, both for the defendant and for other witnesses in the trial, why is that provision included under clause 83 but absent under clause 84? Should that equivalence not be explicit in the legislation?

I hope that I have explained sufficiently the reasoning behind my amendments. I shall listen with interest as either the hon. Member for Beaconsfield or the hon. Member for Woking explain their complicated nexus of amendments. With respect to the hon. Gentlemen, I shall be more interested to hear the Minister's reply on what is a fundamental issue.

I may owe the Committee an apology for what has happened to this group of amendments. It was perhaps inevitable.

The hon. Member for Somerton and Frome has spoken to several amendments, some of which are shared. They are on two key issues, one of which is symbolic, but nevertheless important. The issue is the question of changing the presumption into one of admissibility, whereas previously the presumption was

against it. I share entirely the sentiments that he has expressed on the matter, and can see no good reason to change the presumption, even if there might be an argument for altering the exceptions. The matter is rather symbolic, because even if the amendment was accepted, it would not make a huge difference to the tenor of the Bill. However, Parliament's role is partly to send out messages. Indeed, we are told all the time that things must be done symbolically. That is why we banned handguns, which was totally symbolic. However, I agree with him entirely that we should not get rid of the traditional presumption that previous character is irrelevant, even if we have some exceptions.

Amendments Nos. 367 to 369 also attempt to go to the heart of the issue, by identifying those matters on which it should at least be necessary to get the leave of the court. We have already had a debate on that. The protection of the court in those categories would already be a powerful reassurance that the new provisions will not be abused. That worries me very much, although the Minister has already heard my argument—I do not want to repeat it—and will have a chance to respond to it.

If members of the Committee have read the briefing documents that have been dropping on to their desks, they will know that the Bar Council came up with a complicated set of amendments—the Minister will therefore know the derivation of a large number of the amendments—that presented an alternative structure. That is far more than a probing amendment. I tried to make my way through the labyrinth of that document. I cannot say that the explanatory notes were necessarily the best, although I feel that I followed what was trying to be achieved. There was enough commendable material there that it should have been put before the Committee for consideration in its totality.

For the sake of saving time, it would not be useful to run through every amendment. If the Minister thinks that there are flaws in the proposals, he can doubtless pick up the matter and develop it further, as can any other hon. Member. The thrust of the amendments is that clause 84, as amended—it would effectively be rewritten—would subject most categories of evidence of a defendant's bad character to a requirement of prior leave. That would achieve what was sought slightly more crudely with amendment No. 471, for which I argued. The requirement would not apply to evidence falling within subsection (1)(a) or (b), because they cover matters on which the defendant has either consented to, or offered, the evidence.

There is also an issue in relation to subsection (1)(f), which says that the evidence of bad character is admissible if

''it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant''.

That position needs to be protected, because there is a basic rule that a co-defendant should not be handicapped in his defence by being unable to cross-examine. That too is therefore preserved, but in a

slightly modified form. Instead, evidence in those categories, other than evidence admitted by agreement, will remain subject to the defence right to apply to exclude, as provided in subsection (3). We discussed that in the previous group of amendments.

Then there is the issue of the test to be applied in deciding whether the evidence should be admitted. The amendments seek to do two things. First, there will be the overarching fairness test, as provided in subsection (3), which refers to the right to exclude the evidence if it

''would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.''

In addition, leave could not be given unless the evidence met a threshold test of relevance to an issue in the proceedings, which would provide an extra level of protection. In many cases—this brings us back to some points that we have argued previously—issues such as a propensity to commit an offence can become relevant only if the evidence is of such a nature and quality as to suggest propensity. Courts will on the whole be reluctant to go down that road.

If one were to follow the Bar Council's amendments, one would still end up with a codified package in relation to when evidence of bad character against a defendant can be admitted. However, there would be a much better set of protections on the admissibility of that evidence, which would therefore be better than what is proposed in the Bill. In a nutshell, that is what the amendments, complicated though they might appear, are all about. I should be interested to hear the Minister's response to that. If there are details in that scheme that he finds unworkable, I should be interested to know which they are, so that the Committee can understand why he prefers his own version to that which the Bar Council has proposed.

We are dealing with three main questions. First, should the approach be inclusionary or exclusionary? Secondly, should leave be applied for, for bad character to be admitted? Thirdly, to which categories should the safeguards of subsection (3) apply, in respect of subsection (1)? I shall try to address each of those in turn.

Amendment No. 472, which the hon. Member for Somerton and Frome moved, appears to introduce a small linguistic change, but, as he acknowledges, the issue is about a difference of view on the approach to be taken. The Bill's drafting is quite deliberate. The substantive issue is that the amendment would make a general rule for a defendant's bad character exclusionary, rather than inclusionary, which is the Government's approach. At present, the law assumes that such relevant evidence should not be heard unless the hurdles are overcome. We propose a different starting point.

Will the Minister reassure me that we are not standing the presumption of innocence on its head? That is guaranteed by the European convention on human rights. The Minister kindly wrote to me on 20 December, and I was most concerned that he said that the starting point for the

Government was to bring as wide a range of evidence against the defendant as possible, and then narrow that down. That struck me as turning the presumption of innocence completely on its head.

I hope very much that I can offer the hon. Lady the reassurance that she seeks in relation to the presumption of innocence. Nothing in the Bill changes that at all. In one of our earliest debates, I told the Committee that the presumption of innocence remains the bedrock of our criminal justice system. The clauses do not change that in any way—they seek to assist courts and juries in reaching a decision.

In response to the earlier debate, I gave examples that support the argument for the change. Members of the Committee might be interested to hear the comments of a High Court judge, as an example. In The Times, on 3 December 2002, Dame Heather Hallett commented on a horrific murder case in which a Cardiff woman in her 20s was stabbed 81 times. She said of the defendant:

''He has previous . . . for using a knife, for beating people. It's a classic case of where you might argue that previous convictions should be admitted to the jury. The more I sit as a judge, I think that we trust juries with so many important decisions, why not a defendant's background? It's something I've changed my mind about since I was Counsel.''

That is what one judge said in the light of her experience. For reasons that I gave when we discussed clause 81, the Government's view is that there is a need for a fundamental rethink. That was also the view of the Law Commission, although I accept that what the Government are proposing is not entirely what the Law Commission recommended. It was also Sir Robin Auld's view.

At the heart of our proposals is the concept that the criminal justice system should be more trusting of fact finders to assess relevant evidence, and that requires the new inclusive framework.

Current law means that it is unlikely that a jury will hear that a person who is charged with an offence has been convicted of that offence or similar ones in the past, no matter how frequently that may have been. We do not believe that that represents the correct approach. We do not think that juries cannot be trusted to assess that evidence in the context of the other evidence being presented in the case. No case will rest on evidence of previous misconduct alone. However, we do not believe that juries, when assessing all the evidence in the case, should be denied information that has a clear bearing on the issues, unless there is a good reason to do so.

Why does that information have a clear bearing on the case? Unless there are circumstances in the case where it amounts to similar fact, how will simply telling the fact finders that a person has previously committed similar categories of offence help them to reach a conclusion? What should that information do for them as they consider the evidence?

Let me answer the hon. Gentleman's question by reflecting momentarily on the only experience that I have had of serving on a jury. I was assigned to a case in which the defendant was charged both with burglary and with handling stolen goods that were the proceeds of that burglary, which

had taken place earlier the same day. The defendant had been found in the back of a taxi with those goods on his person. He pleaded not guilty to both charges.

In my opinion, no evidence was advanced by the Crown Prosecution Service that demonstrated that the defendant had carried out the burglary. The explanation that the defendant gave for having the proceeds of the burglary on his person—credit cards and other items—was that someone in a pub had sold or given them to him. That was his defence.

Halfway through the trial the defendant changed his plea—he pleaded guilty to the handling of stolen goods, although retained his not-guilty plea to the charge of burglary. We, as a jury, were not able to reach a verdict because of the change of plea, and at that point we discovered that the defendant had eight or nine previous convictions for burglary.

Reflecting on that personal experience, and considering it in relation to the clauses under discussion, I believe that even had I known that that defendant had previously committed eight or nine burglaries, that would not have persuaded me to convict him on the burglary charge, because no evidence was advanced by the Crown Prosecution Service to demonstrate that he had committed that particular burglary. However, returning to that very unlegal concept of common sense, that knowledge would have assisted me as a juror in reaching a judgment about whether I thought his explanation for being found with the proceeds of the robbery that had taken place earlier that day—in Ealing, I believe—was credible or not. That evidence was not adduced, however, and we never got to hear it while considering the case.

The Minister has picked a singularly poor example. The evidence would probably have been admissible under section 27 of the Theft Act 1968, which relates to proof of guilty knowledge on the basis of evidence of the possession of other stolen property or a previous conviction.

That is a very interesting point, but the evidence was not adduced. The point is that the provisions try to effect a shift in the system. It is all very well for the hon. Gentleman to say that the evidence could have been brought in, but the fact is that it was not. That is why the Law Commission and Sir Robin Auld said that the present system is haphazard and unclear, and that people are not sure how it works. We therefore need to bring clarity into the system.

Let me return to the case in which I was involved. Legally trained members of the Committee might find this a rather quaint notion of common sense, but I think that the evidence that we are discussing would have been relevant to the jury's consideration of the verdict, had the defendant not changed his plea halfway through.

Sitting suspended for a Division in the House.

On resuming—

I had just said that no case will rest on evidence of previous misconduct alone, but the important considerations are how relevant the evidence is to determining the issues in the case and what light it casts on them. To ensure that the magistrates and juries have the evidence that they need to deliver a verdict, the starting point needs to be whether a defendant's bad character is relevant to the issues in the case. It should, like other evidence, be capable of being heard. There may be reasons for excluding it and the provisions need to be made for that. However, exclusions should occur only where there is good reason for doing so, such as where the probative value of the evidence is outweighed by the prejudicial effect. That is a very important protection. In effect we wish to bring about a cultural shift such as I referred to earlier.

I turn now to the impact that the disclosure of a defendant's record may have. Reference was made to Professor Lloyd-Bostock's research for the Law Commission. It is fair to say that it did not demonstrate that jurors and magistrates are overwhelmed by the admission of bad character evidence. Indeed, where jurors heard evidence of a dissimilar conviction, they were less likely to find the defendant guilty, and the jury were not more likely to find the defendant guilty when they knew of an old conviction. The research showed that where jurors and magistrates were aware of a recent similar conviction they were more likely to find the defendant guilty.

However, as the Law Commission itself recognised, such a finding is consistent with attaching probative value to the evidence, rather than prejudice. There is an interesting discussion of that very point in the Law Commission report, which I would commend to hon. Members who are interested.

To be fair to Sally Lloyd-Bostock and the research that she carried out for the Lord Chancellor's Department, the report said that magistrates were ''significantly affected'' by information about the defendant's prior record. There was no suggestion that they were overwhelmed. That was not the finding and I would not want it to be thought that that was suggested in the report.

I did not in any way wish to attribute that analysis to Professor Lloyd-Bostock. The point that I was trying to make—the Law Commission touched on this—is whether we think that the evidence of that research is sufficient to say that none of this should be done. My response is, no. Clearly it is highly relevant to the protection applied by subsection (3), but in the end we should trust the juries.

Subsection (3) is central to the consideration of the clause. The test for the court to apply is designed to reflect the existing position under the common law as section 78 of the Police and Criminal Evidence Act 1984 does. Under that, the judge balances the probative value of the evidence against the prejudicial effect of admitting it and excludes the evidence where the prejudice exceeds the probative value. The Government's intention is for the courts to apply the fairness test in this Bill in the same way and that is the intended effect of the clause. In applying the

test to evidence of a conviction for the same offence, or one of the same category, the court will balance the probative value of the convictions, that is, the extent to which they are relevant to the case—hon. Members have been concerned about relevance—against any prejudicial effect of admitting them.

Like the hon. Member for Witney, I have thought carefully about what to say on the clause stand part debate. Will we ever reach it? I should say that I still prefer the Law Commission's draft Bill in its entirety. Does the Minister accept the Bar Council's argument that sometimes prejudicial evidence will come out before the defendant knows it and before there can be an order to exclude it? It could come out in cross-examination of the defendant.

The trial judge has ultimate responsibility for ensuring that the proceedings are fair. Hon. Members have expressed the concern that the test applied in clause 84(3) does not apply across all the heads of admissibility set out in clause 84(1). That is because such a power is not appropriate in all the circumstances that we envisage in which evidence of a defendant's bad character should be admissible.

Amendments Nos. 367 and 441 would amend clause 84(3). First, I should like to deal with matters in issue between the defendant and the prosecution. Under common law, if evidence of the bad character of a co-defendant is relevant to the defendant's defence, it may be adduced and the court has no discretion to exclude it, although the test of relevance is strictly applied. That is because a defendant should not be inhibited—that point was acknowledged by the hon. Member for Beaconsfield—in the presentation of his or her defence. The Law Commission considered whether that was the right approach in its 2001 report and concluded that no discretion to exclude should be introduced. It quoted the views of Professor Jenny McEwan that there were

''more factors to balance than that of prejudice against probative value. It must be unfair to deprive the co-defendant of evidence relevant to his defence, whatever the effect on the defendant might be. Hence it seems that the current rule is the right one, that if a co-defendant wants to adduce evidence of previous misconduct by the defendant, the only test for admissibility is one of relevance.''

The Law Commission accepted that argument. It pointed out the consequent importance of ensuring that only a co-defendant could take advantage of this provision. It also recommended that evidence should meet a test of enhanced relevance and that evidence solely concerning a defendant's credibility should be admissible only where a defendant had undermined a co-defendant's defence. All of these are important limits on a defendant's ability to adduce evidence of a co-defendant's bad character, and they ensure that that evidence is confined to relevant issues in the case. However, beyond that, we agree with the Law Commission that there should be no general discretion to exclude evidence of bad character on issues between defendants.

Clause 84(1)(g) concerns evidence to correct a false impression. On this the Law Commission recommended that probative value and prejudicial

effect should be considered. However, we believe that there are simpler ways of achieving the right effect. The mischief being tackled by clause 84(1)(g) is the jury's being left with a misleading impression of a defendant as result of an assertion for which he is responsible, such as a false claim to be of good character. Evidence of his bad character is then admissible to correct this impression. The Government believe that it should not be a foregone conclusion that the giving of a misleading impression should result in the admission of bad character evidence to correct it. Instead, the defendant should have an opportunity to correct the impression himself or to dissociate himself from it, thus ensuring that the jury are aware that he lays no claim to the impression. If that is so, there should be no question of evidence of his bad character being admitted, and clause 89(3) now provides for such circumstances. However, if the defendant allows a misleading impression to persist, it will be appropriate and fair to enable evidence of bad character to be given to correct it. Critically, it should only be admissible to the extent necessary to correct such a false impression. That is explicitly provided for in clause 89(6). Evidence that is more prejudicial than probative is unlikely to meet that test. However, it is to be preferred as it more appropriately focuses on the proportionality of the evidence to be admitted.

As far as evidence to be adduced by the defendant himself is concerned, the defendant may choose for tactical reasons to introduce his own bad character. For example, on a rape charge, he might argue that he might be a burglar but he is not a rapist. Alternatively, he might wish to make a clean breast of his record at the outset rather than face the possibility of its being revealed in cross-examination. Were a defendant to choose to adduce evidence of his own record, it would not be appropriate for a court to inhibit the presentation of his case by excluding that evidence.

Finally, I mention explanatory evidence. That is currently admissible outside the similar fact rule and is not, therefore, subject to a balance between probative value and prejudicial effect. The test that we have set out is that without the evidence, the court or jury must find it impossible or difficult properly to understand the case. If that test is met, it is right that the evidence should be admitted; otherwise, we shall be asking the jury to reach a verdict with one hand tied behind its back.

I turn to amendments Nos. 368 and 436 and associated amendments. There is little between the two sets of amendments. One significant difference is that amendments Nos. 368 and 369 would require a defendant to seek leave before he could give evidence of his own bad character. We do not propose that he should be restricted in adducing evidence of his own misconduct for the reasons that I have given, and it is not clear on what basis the court would refuse to give leave. That makes the requirement academic if the defendant wishes to bring that evidence.

Amendment No. 442—which is in the second set of amendments—would also preserve the scope for a defendant to apply for certain evidence of his bad

character to be excluded, as well as requiring the leave of the court before such evidence could be given. However, the substance of both sets of amendments is the question of whether leave should be necessary. That would be undesirable, for a number of reasons. First, the Bill is intended to send a clear signal that relevant evidence of a defendant's bad character is to be admitted as widely as possible. The law assumes that such evidence should not be adduced except in rare circumstances. We wish to put it on a more realistic footing, and not to deny the courts and juries relevant evidence—hence the cultural shift.

Moreover, by making the law clearer and more certain in its application, particularly by providing a clear and straightforward route for the admission of convictions for the same offence, we anticipate that the sort of evidence of bad character that will be admissible in future will be far more predictable. The admissibility of a range of evidence will be safely predicted and little sensible objection could be made to it. That should discourage the kind of legal argument about which the hon. Member for Somerton and Frome expressed concern. It might be undermined if courts were always asked to consider the issue of admissibility.

The amendment does, however, reflect a legitimate concern that defendants should be given an adequate opportunity to apply for evidence to be excluded before such evidence is given. However, existing practices and procedures will ensure that defendants have notice of an intention to rely on such evidence, enabling them to apply for it to be excluded. In the case of prosecution evidence, the requirement for the prosecution to provide the defence with a copy of their case in advance will ensure that any intention to rely on a defendant's record or other previous—

On a point of order, Mr. Cran. Can you do anything to protect the Committee from the appalling situation in which we cannot, in the time available, debate many vital clauses, because of a knife that has been put down by the Government? Is there any way in which you can come to our rescue?

Absolutely none.

The prosecution provide the defence with a copy of their case in advance. That will ensure that any intention to rely on a defendant's record or other previous misconduct is brought to his attention. Co-defendants will be required to give notice under the rules of court anticipated in clause 95. For cross-examation it is worth noting that the Criminal Evidence Act 1898 under which a defendant may currently be cross-examined about his bad character does not require leave to be sought before such questions are asked.

It being ten minutes to Six o'clock, The Chairman put forthwith the Question already proposed from the Chair.

Amendment negatived.

The Chairman then proceeded to put forthwith the Question necessary to dispose of the business to be concluded at that time.

Question put, That clauses 84 to 97 stand part of the Bill, and that the schedule be the fifth schedule to the Bill:—

The Committee divided: Ayes 12, Noes 8.

Question accordingly agreed to.

Clauses 84 to 97 ordered to stand part of the Bill.

Schedule 5 agreed to.

Committee adjourned at eight minutes to Six o'clock till Tuesday 28 January at ten minutes past Nine o'clock.