Clause 10.—(NOTICE OF ALIBI.) (Hansard, 26 July 1967)

§ Mr. Taverne
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is a drafting Amendment to clear up a possible difficulty in a rule of practice, making no substantive alteration to the law.

§ Mr. Mark Carlisle (Runcorn)
I must ask the Under-Secretary of State one or two questions on the Amendment because I do not think that it is merely a drafting Amendment.
I understand that when an alibi is set up the defence has to give notice in advance of the fact of the defence so that the prosecution can inquire into it, and, if necessary, call evidence in relation to it. The Amendment states: Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi. Is this to be a general direction given by the courts, or will it be an individual direction in each case in which this question arises? How do the Government visualise this working in practice? If the evidence is to be given before, will the prosecution have to give notice by way of additional evidence to the defence of the evidence which it intends to call? Presumably it will. Unless it does so, it cannot make it part of its case.
I should have thought that, in justice, if the defendant is to have to disclose his alibi, it is only right that the prosecution should disclose its answer to it. If 757 it does not, will the judge have free discretion to allow it to produce that evidence later, or will it be bound by the rules which are extremely limited, about giving rebuttal evidence? There is clear authority as recently as 1957 in the case of Flynn which says that one can call rebuttal evidence to an alibi if one has no reason to think that the alibi will be raised. If one is to be given notice of it, one is bound to have notice of the fact that it is likely to be raised and under the present rules one would not be able to call the evidence after the defendant had given evidence.
I should be grateful if the hon. and learned Gentleman would say how he sees this working in practice and, in particular, whether he expects it to be the duty of the prosecution counsel or solicitors to serve any evidence which they propose to call by way of additional evidence before the trial commences.

§ Sir David Renton (Huntingdonshire)
It would be very helpful if we could have clarification of the words subject to any directions by the court as to the time it is to be given". One would not expect the court normally, of its own initiative, to give any such directions but only on application by one side or the other. The question is: at what point should the evidence be tendered? There may be disagreement between counsel for the prosecution and counsel for the defendant as to which is the right moment.
It would seem that the court not only will have a discretion to exercise after an application has been made by either side, but may also have an initiative to exercise once it has been alerted that such rebutting evidence may be given. It is necessary that we should have a clear understanding of the functions of the court.

§ Mr. Speaker
The hon. and learned Gentleman needs leave to speak again.

§ Mr. Taverne
With the leave of the House, I should like to reply to the questions which have been raised.
May I deal, first, in general terms with the effect of the Amendment. The difficulty arises from the rule of practice con- 758 cerning the calling of evidence by the prosecution to rebut evidence called for the defence. The general rule is that the evidence for the prosecution must all be given in the main part of its case, and if the defence evidence raises a particular issue, then the prosecution may be allowed to call rebutting evidence. But, in general, this rebutting evidence is allowed only when the evidence to be given in rebuttal cannot conveniently be given in the main part of the prosecution's case. It is difficult to state the exact scope of the rule. In some cases courts have practically required that the rebutting evidence of the prosecution must relate to a matter raised by the defence which the prosecution could not have foreseen. But other cases suggest that the rule is not as strict as that and that it is very much a matter for the judge's discretion.
The subsection of the Amendment allows the prosecution to give evidence in rebuttal of an alibi either before or after the evidence is given in support of the alibi and thus abrogates the old rule. The court, in its discretion, could restrict the prosecution so as to prevent any prejudice to the defence.
It has been argued that the Clause as drafted does not make it clear enough that the discretion to allow the prosecution to call evidence to rebut the alibi of the defence will be unfettered by any requirement such as that the rebutting evidence must not be allowed if the prosecution could have foreseen the defence. It has also been suggested that under the subsection the discretion given to the judge applies only to cases in which the notice has been given and that therefore the court should apply a stricter test in deciding whether to allow the prosecution to call rebutting evidence where the prosecution knows of the intended alibi from a source other than a notice given under the Clause. That was never the intention of the Law Commission when it put forward the draft of the Clause. It seems desirable to put the matter beyond doubt and therefore to provide in the way proposed in the subsection.

§ Mr. John Lee (Reading)
Does not the Clause, as drafted, have the effect of allowing the prosecution, at least in theory, to bring in evidence in anticipation more or less at any stage in the proceedings? That is what it looks like.

§ Mr. Taverne
The prosecution is in a position to bring in evidence in anticipation—

§ Mr. Lee
At any stage.

§ Mr. Taverne
—related to the notice given of the alibi of the defence.

§ Mr. Speaker
Order. We are not in Committee.

§ Mr. Weitzman
Is it not a fact that the Amendment makes no difference whatever to the existing practice? The prosecution has the right now to do this in exactly the same way.