I beg to move amendment No. 401, in

clause 112, page 67, line 13, leave out

'on the balance of probabilities'.

The clause provides for dealing with confessions. In particular, subsection (3) says:

''Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above''—

that is, not obtained by oppression or in consequence of anything else—

''to be proved in the proceedings on the balance of probabilities.''

The amendment would delete the reference to the balance of probabilities and require the confession to be proved. I am not sure whether, in practice, that would make a huge difference, but the reason for tabling it is to enable us to examine the issues raised by the clause.

As I understand it, the provision relates to the possibility of a co-accused's confession being brought before the court on the application of a co-accused for his own purposes in circumstances where the accused may at some stage have claimed that that confession was improperly extracted from him. That raises an interesting and complex tangle of possibilities. I wondered whether the balance of probabilities was the correct test, although I acknowledge that, generally speaking, on a voir dire, if one were seeking to exclude evidence, that might be the proper test to apply. I should be grateful if the Minister would explain how he expects the provision to work.

I have some sympathy with the hon. Gentleman. Clearly these are difficult cases. It is possible to imagine a scenario in which a group of defendants might seek to coerce the weakest member of the group into confessing that he or she has committed the crime, so that they can escape justice. However, I am sure that the courts will always be alive to that risk, and the judge will surely wish to satisfy himself, before the confession can go in, that it was obtained voluntarily.

It is also a well-established principle that, whenever the accused bears a burden of proof, in no case should

he or she be called on to prove an issue beyond reasonable doubt. The standard of proof is on the balance of probabilities. That principle has applied when the court needs to satisfy itself on an issue before a certain piece of evidence can be admitted. For example, when the defence currently seek to admit a hearsay statement under the Criminal Justice Act 1988, it need only prove that that requirement is met on the balance of probabilities. The Law Commission examined the issue and concluded that the lower standard of proof should be applicable to the defendant.

I have listened to the hon. Gentleman, but I am not persuaded that it would be right to make such a change. We have carefully considered the issue and I hope that he will be persuaded to withdraw the amendment.

Yes, I am. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 524, in

clause 112, page 67, line 24, leave out paragraph (b).

This is a probing amendment designed to give the Minister the opportunity to explain what is meant in subsection (4)(b). I assume that it means that graphological analysis—handwriting analysis—of a confession could be adduced. It might also cover patterns of speech without considering the content, but any matter that actually provided evidence of content would be excluded, the purpose being to examine the physical or idiomatic characteristics of a confession, not the actual substance of what was said. If that is what is meant, I am sure that the Minister will be able eloquently to explain it to me in order to persuade me to withdraw the amendment.

I shall set out our thinking behind the clause. I have a rich example from 1918 involving Belgians, which I hope will clarify the matter.

Following a change in the common law in 1996, a confession by one defendant can be relied on by a co-defendant in the same case, even if the prosecution cannot rely on it, provided that it was made voluntarily. In those circumstances, the confession can be used by the co-defendant to show that he did not commit the crime, although it will not be evidence that the defendant who made the confession is guilty.

The Law Commission recommended tidying up that area of the law, so that instead of a requirement that the confession be ''voluntary'', the requirements of section 76 of the Police and Criminal Evidence Act 1984 should apply. In that case, the confession could be relied on by the co-defendant only if it was not obtained by oppression or inducement. That is entirely sensible. Even where a confession is excluded under section 76 in a standard case—where the prosecution want to rely on it—section 76 enables the prosecution to rely on certain things derived from the confession. Those are: facts discovered as a result of the confession, and use of the confession to show that

the accused speaks, writes or expresses himself in a particular way.

In applying section 76 to confessions used by co-defendants, the Bill retains those exceptions so that such material may still be admissible even if the confession itself is not. Amendment No. 524 would remove the exception that allows the use of the confession to show that the accused speaks, writes or expresses himself in a particular way. However, we believe that that exception serves a useful function in respect of confessions that are inadmissible for the prosecution, and we have no reason to doubt that it would also be useful in the context of co-defendants.

A confession may reveal—this goes to the heart of the hon. Gentleman's concern—more than what is asserted in it, and it should continue to be possible to admit those other factors in evidence. That principle is derived from the old case of Voisin in 1918, in which the defendant misspelt the words ''bloody Belgian'' in a particular way, and that note was admissible to demonstrate that the defendant had written a similar note on a parcel containing the body of his victim.

To quote ''Blackstone's'', an eminent authority on the criminal law,

''Section 76(4)(b) might be used, for example, in a case of rape, where a tape-recorded confession is ruled inadmissible, but the voice of the accused can be heard speaking with an usual speech impediment which was also described by the victim, or with a particular local accent.''

If evidence of that sort is properly admissible under section 76 for the purposes of confessions used by the prosecution, we see no reason to delete the exception where the evidence is to be relied on instead by a co-defendant. I hope that that clarifies the position and gives the hon. Gentleman the reassurance that he needs, and that the amendment can now be withdrawn.

I am always persuaded by arguments that involve Belgians. That is a sure-fire tactic. I am grateful to the Minister. He has explained the circumstances in which the subsection would operate, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 525, in

clause 112, page 67, line 37, after 'includes', insert

'but is not necessarily limited to'.

This is a probing amendment, to allow us to understand how far the Government feel that the term ''oppression'' may extend. As it is drafted, subsection (7) includes

''torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture)'',

but there are various other areas of duress or harassment that would not fall into such categories. It would be useful if the Minister could give a working definition of what might be construed as oppression within the meaning of the clause, given that the wording is meant only to give an indication.

I understand what the hon. Gentleman is getting at, but we do not think that the amendment is necessary. It seeks to clarify the fact that the definition of oppression is not exhaustive. As the clause says that

it ''includes'' torture and so on, it is clear that it is not exhaustive. The definition uses the same wording as section 76(8) of the Police and Criminal Evidence Act 1984. The courts are well used to applying that definition and the meaning is understood. In the case of R v. Fulling it was suggested that oppression under PACE was to be given its ordinary dictionary definition, which is:

''The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.''

I hope that, with that clarification, the amendment can be withdrawn.

We now have a dictionary definition on the record. That is extremely helpful and will answer any future queries. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 112 ordered to stand part of the Bill.

Clauses 113 to 118 ordered to stand part of the Bill.