I beg to move amendment No. 400, in

clause 110, page 65, line 32, leave out 'may' and insert 'must'.

With this it will be convenient to discuss amendment No. 430, in

clause 110, page 65, line 33, after 'stated', insert

'(even though it might otherwise consider the statement admissible under section 98(1))'.

The clause deals with the court's general discretion to exclude evidence. Subsection (1) states that in

''criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if''

it is hearsay and if

''the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.''

If that is the case, and the criteria under paragraph (b) are satisfied, I am at a loss to see why the court should still be given the residuary discretion to allow the evidence to be admitted. That is why the amendment proposes to substitute ''must'' for ''may''. In view of the wording of subsection (1)(a) and (b), I can think of no occasion when the judge is likely to come to a contrary conclusion, so ''must'' is the appropriate term.

Amendment No. 430 relates to the interrelationship between the clause and clause 98(1). It appears that there is a potential internal contradiction between the two clauses. It is much more of a probing amendment.

I hope that I can reassure the hon. Gentleman on both points. In providing a power to exclude evidence that is more likely to waste the court's time than assist it, our intention is to ensure that the courts have adequate powers to control the admission of hearsay evidence, not just where it would be unfair to admit it, which is dealt with in subsection (2), but otherwise as well. As I said before, we are constantly striving to strike a balance between clarity and flexibility. Being absolute about when the power in subsection (1) is to be exercised will not strike that balance and is neither necessary nor desirable.

Although we would expect it to be very rare for the courts not to exclude evidence if the conditions in subsection (1) are met, there might be some circumstances in which that would be appropriate. For example, it might be appropriate in order to satisfy a defendant who insisted that certain evidence should be heard. Being absolute provides no room for manoeuvre should unexpected circumstances arise. The Government think that it is desirable to retain the flexibility.

As the hon. Gentleman said, amendment No. 430 is a probing amendment. It is superfluous because the power to exclude applies only to evidence that is otherwise admissible. If the evidence is inadmissible, there is no question of its going in and the power to exclude it is therefore unnecessary. It follows that, even without the proposed additional wording, the

power to exclude will apply only to evidence that is otherwise admissible.

I hope that that clarifies matters for the hon. Gentleman and that he will not press the amendments to a vote.

As an Opposition Member, it is my lot in life to keep on coming across the words ''may'' and ''must'' in virtually every clause of the Bills that I consider, which are usually criminal justice Bills of one kind or another. I spend my life trying to persuade the Government to turn ''must'' into ''may'' and vice versa. Whichever way I propose it, successive Ministers come along and argue powerfully that the conversion cannot be made. I am wholly unconvinced by the Minister's arguments, but I rely on the good sense of the judiciary to ensure that the provision does not cause a massive problem. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 399, in

clause 110, page 65, line 38, leave out 'substantially'.

With this it will be convenient to discuss the following amendments: No. 431, in

clause 110, page 65, line 39, at end insert

'(and, where the statement is tendered by the defence, of the impact of its exclusion on the fairness of the trial)'.

No. 402, in

clause 110, page 65, line 39, at end insert

'and

(c) by admitting it the defendant would not receive a fair trial'.

Sometimes one rises to speak to an amendment that one cannot remember drafting. The longer I stand here, however, the more I realise why I drafted it, which has given me time to get straight to the point—just.

Hesitation.

Yes, hesitation or deviation.

Amendment No. 399 is a probing amendment. I wonder whether the Minister might take the view that we need to have to balance the burden on the Crown with the burden on the defendant in the courts. In any case, the burden of proof is on the prosecution, where it must remain, and the standard of proof is very high. Omitting the word ''substantially'' would make the playing field slightly more level. A court can currently refuse to admit a statement if it is satisfied that the danger in excluding it substantially outweighs the case for admitting it, which gives the Crown a slightly stronger position than ought to be the case. If one argument outweighs another, it does not have to do so substantially in order to be the winning argument. The amendment's purpose is to shift the balance slightly more in favour of the defendant than would be the case if the word ''substantially'' were left in. That is the amendment's purpose, and amendments Nos. 431 and 402 follow the same general thrust.

I understand why the hon. Gentleman has drafted the amendments, which he has explained very well. We believe that they are unnecessary and will resist them, but I shall try to explain why in some detail, because they concern important issues of principle.

Clause 110 enables a court to exclude hearsay evidence, which is otherwise permissible, if on balance the evidence is more likely to waste the court's time than assist it in determining the issues in a case. In other words, the clause is aimed at weak evidence that adds little to a case but would not make a trial unfair. Evidence that would cause unfairness would be excluded under section 78 of the Police and Criminal Evidence Act 1984, which, as clause 110(2) clarifies, applies to the evidence.

As I have mentioned, the clause is not about evidence that would cause a trial to be unfair. Instead, it deals with evidence that could be fairly admitted but is more likely to waste the court's time than to assist it, which is why the amendments are misconceived. In its 1996 report, the Law Commission stated that evidence that the prosecution seeks to adduce may still under our proposals be excluded by the court in the exercise of its discretion at common law or under section 78(1) of the Police and Criminal Evidence Act 1984.

That does not, however, cover superfluous evidence, which would not make a trial unfair, and there is no control on the quantity of defence hearsay evidence. The new power to exclude superfluous hearsay would be available in relation to all hearsay evidence that would otherwise be admissible under our recommended scheme. We envisage that the exercise of this power will be appropriate only in exceptional cases where the probative value of the evidence is so slight that almost nothing is gained by admitting it. This power will help the opposing party and also ensure that the court's time is not wasted, thereby meeting the point, which concerned some respondents on consultation, that the admission of hearsay would lead to a lot of barely relevant evidence being adduced.

The new requirement in amendment No. 402 that admission would cause an unfair trial for the defendant is not therefore appropriate in the context of subsection (1). Evidence that did not meet that condition would be excluded under section 78 of PACE or the common law. The clause is concerned about wasting the court's time with a wide range of hearsay evidence that is unnecessary and, as the Law Commission said, is so slight that almost nothing is gained by admitting it.

Amendment No. 431, which relates to the question of fairness when the defendant wishes to adduce a statement, is unnecessary for a different reason: it would be contrary to the court's most basic duties to ensure a fair trial if it were to exclude evidence that a defendant wished to tender in circumstances in which it would create unfairness. The amendment is therefore superfluous.

On the other hand, amendment No. 339, which would omit the word ''substantially'' in subsection (1)(b), puts the emphasis on a greater exclusion of relevant material. The effect would be that where the

balance was just in favour of exclusion, the test would be met and the evidence excluded. That is overly restrictive, given the fact that we want more relevant evidence admitted and that such evidence would not cause unfairness. The intention is to catch only evidence that does very little for the case.

I hope that that sufficiently clarifies the matter for the hon. Gentleman to withdraw the amendment.

No and yes, possibly not in that order. I am grateful to the Minister and I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 378, in

clause 110, page 65, line 45, after 'otherwise)', insert

'including the power to exclude prosecution evidence where its prejudicial effect outweighs its probative value.'.

The explanatory notes on the clause state:

''Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.''

The second part of that sentence is explicit in respect of subsection (2)(a), but less explicit in respect of (2)(b). The Government have a firm intention, but paragraph (b) simply refers to:

''any other power of a court to exclude evidence at its discretion''.

That is a sensible provision in itself, but it could produce some confusion, particularly when it is read with clause 102(2) as intimating that the common-law rule, which is expressly mentioned in the explanatory notes, might not be preserved as a result of the Bill. Our intention is that by making it explicit, there is no element of doubt that the rule survives the earlier culling process and that it remains as described in the explanatory notes. The Minister agrees that it should survive and there is no difference in our intention. The question is simply whether the Bill as drafted is sufficiently explicit in expressing that intention.

Do not the words of the clause as drafted explicitly mean that every discretionary common-law power to exclude evidence survives?

That might be the intention and I do not disagree with the hon. Gentleman, but we must be at pains to ensure that it is understood that the power, to which the explanatory notes draw attention, is part of the common-law rules that survive. That is not specific in the earlier clause. If there was a clear interplay between the two, it would not cause concern. The concern that I express is not entirely my own, but is the concern of others much better qualified than I am to consider these matters, and they have said that there is an element of doubt. I believe that, if there is an element of doubt, the Bill should be explicit rather than implicit, and I hope that the amendment will provide a remedy to that.

I am slightly baffled about why there should be an element of doubt. As my hon. Friend the Member for Wellingborough said, subsection (2)(b) refers to

''any other power of a court''.

However, I am happy to offer the assurance that the clause covers those provisions. I hope that, on that basis, the Committee will accept that no amendment is needed.

I subscribed to the amendment, but as that assurance has been put on the record, I am broadly satisfied that there is no need to pursue the matter further.

That was precisely the point of tabling the amendment: so that the Minister could say the words that he has just said. He has now said them, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 ordered to stand part of the Bill.

Clause 111 ordered to stand part of the Bill.