Question proposed, That the clause stand part of the Bill.

The clause gives me quite serious concern and I cannot allow the matter to pass. I contemplated tabling an amendment, but there is nothing to amend. It is all or nothing. I would be grateful if the Minister could tell me the rationale behind the approach that has been taken. In criminal proceedings, it is unfortunately very common for witnesses to come into the witness box and give evidence that is at variance with the proof of evidence or statement that they have given to the police. From a prosecutor's point of view—the situation can also arise in relation to the defence—that can raise difficult issues about what should be done. The prosecutor may decide to live with the statement as it is given. In that case, the inconsistencies may be picked up by the defence counsel if he wishes to do so, although if what is said in the witness box, as opposed to the statement on paper, turns out to be favourable to the defence, the defence counsel may choose to keep quiet.

If the prosecutor considers the statement given from the witness box to be hostile to his case, the alternative is to ask for the witness to be treated as a hostile witness and to put his previous inconsistent statement to him. That is usually effective in totally discrediting the witness in the eyes of the jury and the court. It is highlighted that the witness previously said that he saw the defendant go into the shop from which—it is alleged—he was going to steal, but the witness now says that he never saw him enter the shop, and that in fact he was miles away at the time and cannot help the court at all.

There was even an occasion in my early days at the Bar when I went to a court in Surrey for a serious grievous bodily harm committal hearing. A group of skinheads had beaten up an Asian. The police had

arrested all at the scene and taken them to the police station. They took seven or eight statements—all of which may have been the truth, although one can never tell—to the effect that two of the group had done the beating up. Therefore, two of them were charged.

We had an old-style committal—the skinheads went into the witness box and one after the other said that he did not remember seeing anything, could not remember what had gone on, had not seen the two defendants and had not been near the scene having wandered off a bit earlier. Although we managed to get the defendants committed, the case could not proceed at the Crown court.

The effect of clause 103 will be not only that a prosecutor will be able to put a previous inconsistent statement to the witness, but it will be possible to ask the court to treat as the witness statement the earlier statement on which the prosecution—and the defence, for that matter—wishes to rely. The Minister will interrupt me if I have misunderstood the position.

I suppose that we shall be saying to the jury, ''Well, you have heard the evidence in this case. You saw that Mr. Bloggs went into the witness box and said that he had never seen the witness anywhere. However, you will note that when he gave a statement to the police nine months ago, he said specifically that he saw the defendant go into the shop. You will obviously want to weigh up that evidence, but if you choose to do so, you may decide that the earlier statement that Mr. Bloggs gave to the police rather than what he said in the witness box is the statement on which you can and should rely. If you decide that what he was saying then was the truth, you may decide to accept it.''

If I have understood the position correctly, we are embarking on a course of action that carries amazing risks. Should a witness's statement be discredited, it is discredited; he has no credit. Even though it might be convenient for the prosecution—or the defence—to say that the witness's evidence should still be considered, and that what the witness refused to say in the witness box but said earlier should be treated as evidence, how can we properly invite a jury to consider that evidence? That departure goes much further than is reasonable or rational in trying to do justice. Although it may be inconvenient to have hostile witnesses, if somebody is so discredited that he gives contradictory evidence in the witness box from that he gave previously, that evidence must be treated as worthless.

Might this not always be a situation in which the previous inconsistent statement discredits the witness, yet that witness may, for creditable reasons, be unable to remember what he said in the initial statement? I refer to the person with a history of mental illness, the person who suffers mental illness as a result of an assault, or the person whose mental state is declining because of dementia or Alzheimer's. Is the clause not a way to try to protect them, although the weight of their evidence will be difficult for the jury to assess?

The hon. Gentleman makes a good and important point. I had hoped that the Minister would

be able to help us, and that other provisions would cater for that. I would expect in the ordinary course of events that someone suffering from Alzheimer's or mental illness would not be put through the process of having to go into the witness box, and that their statements would be read out under other aspects of the hearsay provisions, which have existed for some time.

One then thinks of those who appear to be truthful witnesses but who start saying things in the witness box that are at variance with their recollection. The ability of witnesses to refresh their memories from statements was previously denied them to prevent it becoming an exercise in recollection. I do not think that that ought to happen.

I take the hon. Gentleman's point; we may still need a clause on inconsistent statements, but this one appears to open another avenue: if a witness turns out to be hostile—the truth is that this will be used mainly by the prosecution—and gives evidence at variance with that he previously told the prosecutor, his statement to the prosecutor or the police investigator, and not what he said in the witness box, which flatly contradicts it, can be treated as the truth. That worries me. I wait to hear from the Minister.

As I understand it, the heart of the hon. Gentleman's objection—he will correct me if I am wrong—is that a statement that is discredited should remain so. I remind him of what my hon. Friend the Member for Stafford (Mr. Kidney) said: it must surely depend on the circumstances of the discrediting. That is the key. In a moment, I shall give an example of domestic violence that might help the Committee better to understand what was in our minds when proposing the provision.

The clause allows an earlier statement made by a witness that is inconsistent with his or her oral testimony at the trial to be used as evidence of the truth of its content. Under the present common-law rules, a witness may be cross-examined on an inconsistent statement made before the trial. If the witness accepts that the earlier statement is true, it can go in as evidence on the facts; but if a witness denies the truth of the earlier statement, for whatever reason, it reflects only on the truthfulness of his credibility as a witness. Fact finders may not treat it as evidence of the facts stated in it. That is clearly unsatisfactory.

Why?

I shall give an example, which I hope will help the hon. Gentleman understand why. We are looking for the truth. We are seeking justice, which must be based on the truth of what happened. I ask him to bear that thought in mind for a little longer, while I try to make my case.

Where it is possible for fact finders to treat an earlier statement as true, why should they be prevented from doing so? We see no reason why they should be so prevented. If we can trust juries to decide whether a witness has lied throughout a trial and that they should therefore disregard his evidence, why should they not be allowed to decide that a previous statement is correct if they find it more convincing? That is their job.

In the light of such difficulties, the Law Commission recommended that if the witness admits that he made a previous inconsistent statement, or if it is proved that he did so, the earlier statement should go in as direct evidence of the truth of its contents. Clause 103 gives effect to that recommendation. It may help the hon. Gentleman if I give an example of a case involving serious domestic violence, which is often relevant in such circumstances as well as in those adduced by my hon. Friend the Member for Stafford.

Let us take a case involving serious domestic violence. Let us assume that the victim has said, contrary to an earlier statement, that the complaint that they were beaten up by their partner was completely made up. On cross-examination by the prosecution, having been declared a hostile witness, the victim is unable to explain away their serious injuries of which there is independent and reliable medical evidence.

Under clause 103, the fact finders would be able to convict if, despite the victim's denial of the previous incriminating statement—we all know from our constituency experiences that there are many cases of this happening—they were sure that the defendant had committed the assault charge. That would, of course, be subject to the court's power to stop a case if there were insufficient evidence to ensure a safe conviction. Surely, in those circumstances, the clause would promote the cause of justice, which we all want to see done. I ask the hon. Gentleman to reflect on that example and, indeed, that given by my hon. Friend the Member for Stafford.

I shall put the final nail in the edifice that I am erecting to reassure the hon. Gentleman. The proposal was recommended by not only the Law Commission but other common-law jurisdictions such as Australia and the federal courts in the United States of America, which have enacted those reforms. We are not aware of any problems as a result of those changes and we do not foresee any problems in the UK. On that basis, I commend the clause.

I accept that we are only looking at the clause. I should be interested to learn about other examples from common-law jurisdictions, and I shall certainly go away and have a look at them. As we have been tending to do during the consideration of some clauses, we are making the most dangerous assumptions about what it is or is not possible to infer from factual evidence.

Somebody might come to a court and state on oath, ''I retract everything that I previously said. My husband did not beat me up. I got the injuries by falling down a staircase.'' I fully understand the strength and force of what the Minister is saying. People may say, ''The victim has decided that she will not press charges.'' As we have to convict people on the basis that we are sure, in the absence of other not only supportive but probative evidence such as that of some other person who saw what happened, it is very dangerous to embark on a road of a series of contradictory statements, which show the person who gave them to be completely unreliable.

The danger is that what we choose to read into and select from the statement is the part that is most in accordance with the result that we wish to see, which, in the case of a battered woman, partner or wife, is a deep desire that justice should be done and that the perpetrator should be punished. If there is no proper foundation on which we can draw that conclusion because the principal complainant appears willing to say one thing on one occasion and one thing on another, in the absence of any other probative evidence, we run serious risks of miscarriages of justice.

I have been listening carefully to my hon. Friend's argument. If the evidence is admitted in such a case, we have in many ways to trust both the judge to give the correct summing-up and the jury to exercise its judgment on whether there is enough evidence to convict, despite what the victim has said. The judge will surely say, ''You have heard the victim give one statement. You have also heard a retraction, but you have seen the injuries. You have heard the supporting evidence. It is up to you to make a judgment on who is telling the truth.''

My hon. Friend is right, and his point relates to a discussion that we have had on a number of other clauses: the trust-the-jury concept. We have discussed it, for instance, in relation to evidence of bad character. Why not let jurors know everything so that they can decide for themselves? If we do that, they will come to the right decision.

I believe that juries can be reliable. However, the jury system has always worked in common-law jurisdictions on the basis that the material placed before a jury is of a kind that enables jurors to make a series of fairly straightforward choices. The Government have not departed from that entirely in the Bill, although they have moved the goalposts somewhat. If that changes, there is a risk that choices may be made, for perfectly understandable human reasons, on a basis that is not sound.

I agree with my hon. Friend that a judge who directs a jury properly will go a long way towards solving the problem. A problem in criminal trials nowadays is that directions from judges are becoming so complicated that the simplicity of jury decisions based on facts is becoming ever more obscured. Judges are required to engage in academic and intellectual exercises to ensure that they have given jurors every correct direction.

There is no more fertile field for success in the Court of Appeal than being able to show that the judge failed to point out this or that pitfall against which jurors were to guard themselves. In no situation is it more of a requirement that a judge give clear directions than one in which a witness has given an account that is inconsistent with their statement and the judge suggests that jurors should be allowed to rely on the statement and not on the account given live in the witness box.

The only reason why I am so anxious to intervene is that I so hate to see anyone distressing themselves unnecessarily. The hon. Gentleman is

obviously very unhappy about the measure, but he is winding himself up for no real purpose. I wish only to remind him of what I actually said. We are discussing a statement that was made and then retracted. That is significant.

Incidentally, although I gave the example of domestic violence—our understanding of that very regrettable phenomenon is developing, and we know that far too many people have got away with committing serious crimes for far too long—we are by no means confined to that particular crime. I refer again to what my hon. Friend the Member for Stafford said in that respect.

We start with the fact that a statement has been made and then retracted. In giving my example, I was extremely careful to say that it would be relevant if there were independent, reliable medical evidence of injuries that the victim was unable adequately to explain. I desperately want to give the hon. Gentleman some reassurance. In his very elegant discussion of the perils that we might face, he overlooked my very careful remarks. I concluded by saying that the situation would, of course, be subject to the court's power to stop a case if there was insufficient evidence to ensure a safe conviction.

Order. I take this opportunity to note that interventions are getting longer and longer. The Minister would have no difficulty in catching my eye if he wanted to make his original speech again.

I listened carefully to the Minister. As I understand it, the inconsistent statements are those that are proved by virtue of sections 3, 4 or 5 of the Criminal Procedure Act 1865. I believe that I am right in saying that that is a process by which the prosecutor or the person who has called the witness chooses to cross-examine the witness themselves to highlight the inconsistencies. I do not refer to a previous inconsistent statement that may be examined by counsel for the other side. I refer to a decision taken by the advocate, normally the prosecutor, that what the witness has said is at such variance with his understanding of the position of the witness that he wishes to submit the previous statement, as has been done traditionally for the purposes of discrediting the witness. It would still be permissible for the evidence of that witness to be used and treated, with a direction from the judge, as if it were the truth.

I appreciate what the Law Commission is trying to achieve, but it constitutes a staggering departure from normal principles. Perhaps I have spent too much time at the criminal Bar, but I fear that the provision is fraught with difficulty. However, we have had an opportunity to air the matter, and I dare say that it may be taken up in another place, if their Lordships think there is any merit in it.

Question put and agreed to.

Clause 103 ordered to stand part of the Bill.