§ PROVISION OF STATEMENTS IN CRIMINAL CASES
'(1) In criminal cases where on summary conviction the defendant shall be liable to imprisonment for a term exceeding three months, the prosecutor shall if required by the defence, as soon as reasonably practicable, supply the defence with copies of all statements relevant to the case taken from witnesses whom it is proposed to call or to tender to give evidence.
(2) If a defendant is not represented by counsel or a solicitor the Court shall inform him of his right to be supplied with copies of statements as set out in subsection (1) hereof.
(3) Where the prosecutor has in his possession statements relevant to the case, taken from persons whom it is not proposed to call or to tender to give evidence, copies of all such statements shall, as soon as reasonably practicable, be supplied to the defence.
(4) The prosecution shall be entitled not withstanding the relevancy of any statement, to refuse to supply copies or to permit inspection of the statement or parts of it, on the ground that it would be contrary to public policy so to do. In such a case, however, the objection shall be notified to the defence in writing. If the defence does not accept the validity of such objection the Court or judge shall rule thereon. In deciding upon the validity of such objection the Court or judge shall not be bound to disclose the contents of such statement to the defence'.—[Mr. S. Clinton Davis.]
§ Brought up, and read the First time.
§ Mr. S. Clinton Davis (Hackney, Central)
I beg to move, That the clause be read a Second time.
The clause is designed to cover the following points—first, the desirability in certain cases which are tried summarily of the prosecution tendering to the 366 defence, in advance of the hearing, statements on which the prosecution intends to rely; second, the desirability, in the interests of justice, of the prosecution tendering to the defence of copy of a statement of a prosecution witness which is materially at variance with his testimony; third, the desirability, in the interests of justice, of the prosecution tendering to the defence a copy of a statement by a witness whom it is not proposed to call. These views have been expressed very forcibly by Justice and I believe that there is a great deal to commend them.
Subsection (1) is limited to the duty to provide statements, first, if they are required by the defence, and second, only in cases which carry a sentence in excess of three months. It would be folly to have every trifling case dealt with in this way. Certainly, one would not want people who are charged with being drunk in the street, for example, to have recourse to this system.
This procedure would have a number of advantages. We are frequently told by the Lord Chancellor and the Attorney-General that, in too many cases which could be tried summarily, a defendant elects to go for trial. Thereby there is caused a coagulation of the lists of the Crown Courts, delay and undue expense.
The reason for this is that frequently the defence does not know the case which it has to meet when a defendant appears in a magistrates' court and the prosecution all too often refuses to give any indication of its evidence beforehand. This is particularly true of the case where a police officer is prosecuting and feels, perhaps, a natural reticence because he feels that it may not be proper to divulge to the defence the nature of the prosecution case and, indeed, the details of it. This is a situation which occurs even where the prosecution is represented. Secondly, there are many people for whom a conviction, even in a relatively minor case of dishonesty, could have a devastating effect upon their future. This situation has to be remembered in that context.
If this procedure were followed, because the defence would know what the situation was, it would result, first, in many more pleas of guilty. Secondly, there would be fewer cases where an 367 election would be adopted by the defence. I cannot see any distinction between the proposal which I am enunciating here and the provisions of the Criminal Justice Act which enable the defence, in cases which go for trial, to have the prosecution statements in advance of the hearing. That particular section of the Criminal Justice Act 1967 has worked extremely well concerning commitals. I see no good reason why in these more serious summary cases a similar situation could not prove of advantage to courts, to the accused, to witnesses and to the advocates.
The opposition to this proposal—this is by no means the first time that it has been raised—would probably be to argue first that there might be some delay. That is not a weighty consideration, because the prosecution's statements are invariably available to the prosecutor in any event before they appear in court, and it would not be very much more difficult to ensure that the formalities which are outlined by the Criminal Justice Act could be readily complied with. There is infinitely more delay and expense involved if an unnecessary election is forced upon an accused person.
A second argument that might be adduced against it is that a witness might regard the implementation of this rule as a deterrent against making a statement to the police. But that is not a very weighty argument either, because most witnesses in prosecutions realise that they might have to give evidence in any event. Although that argument has been adduced in the past, I hope that the Solicitor-General will not seek to rely upon it, because it is somewhat unworthy.
Subsection (2) seeks to protect the unrepresented defendant. It speaks for itself that if a defendant is not represented by counsel or by a solicitor, the court usually informs him of his right to be supplied with copies of statements, as set out in subsection (1).
Subsection (3) deals with the second and third points which I sought to adumbrate at the beginning of my speech. Sensible prosecutors will supply the defence with statements of prosecution witnesses which are materially at variance with the testimony of the accused person, but the law is not specific.
368 It is spelt out at paragraph 1374 of the current edition of Archbold that there have been cases where, in view of their particular circumstances, judges have ordered the prosecution to hand to the defence statements made to the police by witnesses for the prosecution. Two cases are cited, those of Hall and Xinaris.
Archbold states:In both these last-mentioned cases it is clear that the judge adopted the course only in the circumstances of the particular case, and neither case should be regarded as an authority for the proposition that there is any general duty on the part of the prosecution with regard to statements to the police by witnesses or potential witnesses beyond what is above stated.10.30 p.m.
Lord Denning, in Dallison v. Caffery, reported in 1964 2 All England Law Reports, went further and said:The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a creditable witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence.I believe that the proposed new clause will make the duty of the prosecution plain and specific. It would be fair and just. I hope, therefore, that the Government will find it acceptable.
The new clause also meets the position where the prosecution has statements which it does not intend to use. Lord Goddard, in the case of Bryant and Dickson, reported in 31 Criminal Appeal Reports, page 151, said:It is said that it was the duty of the prosecution to have supplied the defence with the statement which Campbell had admittedly made to the prosecution. In the opinion of the court there is no such duty, nor has there ever been … the duty of the prosecution is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence.It would seem that the words used by the former Lord Chief Justice, "make available", merely mean to give the name and address of the witness. This is quite unjust. It can have monstrous consequences. Indeed, a case was cited to the Justice Committee, which investigated this matter, where the prosecution refused to divulge any information about 38 witnesses who were not called until after conviction. Statements were refused although an appeal had been 369 launched on the ground that the witnesses could give no material evidence to the defence. So the defence was put to the enormous trouble and expense of locating the witnesses, the vast majority of whom refused to make any further statements on the ground that they had already assisted the police. Why should the prosecution be the judge whether a witness can help the defence?
Subsection (4) provides safeguards for the prosecution, coupled with the proviso that the judge should be the final arbiter where the prosecution refuses to supply statements on the ground that it would be contrary to public policy to do so— for example, so that informers should not be prejudiced on the ground of public policy where the judge thought it appropriate to invoke that proviso. Obviously it would not be in the interests of the public for certain methods used by the "underworld" relating to forgery or other crimes to be disclosed where this proviso is invoked, and similarly where matters of great confidentiality between the public and the police have to be protected.
I believe that subsection (4) would introduce into the administration of our criminal law a system of fairness to both parties. It would have the effect of cutting out a great deal of delay and expense which is necessarily involved. I hope, therefore, that the Government will accept not perhaps the precise wording —I do not claim to be an expert drafts-man—but the principle in the new clause.
§ Mr. Grieve
The whole House is indebted to the hon. Member for Hackney, Central (Mr. Clinton Davis) for having again brought this matter before the House in the form of a new clause. It was raised on Second Reading, and I was happy then to give the hon. Gentleman my support in principle with regard to the furnishing of statements in cases coming before the magistrates' courts.
Had the clause comprised merely subsections (1) and (2), it would have had my unreserved support. But I cannot go along with the hon. Gentleman in supporting subsection (3), even with the reservation contained in subsection (4). But as regards subsections (1) and (2), the argument adduced by the hon. Gentleman and the facts on which it is based are irrefutable.
370 The truth is that when a case of any importance and gravity comes before magistrates the only way in which those who are defending the accused can be assured that they know the case against him is to opt to go for trial. At present in a case before magistrates, if the accused elects for summary trial his advisers and he do not know the case which is to be deployed against him. This is one cause of the overcrowding of the higher courts, and the fact that vast numbers of cases are committed for trial on indictment at the instance of the accused, thereby clogging up the works of the Crown Court, is in no small measure because without opting for trial by jury the accused and those advising him cannot know the nature of the case against him.
That by itself would be quite sufficient ground for supporting subsections (1) and (2) but, as we all know, the matter goes much further. It is elementary fairness in the administration of justice that the accused, in whatever court he should be tried, should know the case against him. We recognise this on trial on indictment because the statements of witnesses which are to be used are all made known in advance. At one time, the Crown had to go through the procedure of calling the witnesses in person before the justices on committal. It was only by the Criminal Justice Act 1967 that that was ended and we were enabled to have the shorter procedure of serving statements before the magistrates and on the accused so that there could be committal for trial.
When a man goes before justices none of this is gone through. He goes down, his advisers go down, and he does not know what the case is to be. His legal advisers are in no position to tell him, as they can frequently when a case is tried on indictment, that the case against him is overwhelming and that he will do much better to plead guilty. Perhaps they hear from him a garbled, one-sided, coloured, emotive version of what took place, and they are in no position to advise him. Frequently in circumstances of that kind the prosecution springs on the legal advisers and possibly even the accused matters of complete surprise.
The hon. Member for Hackney, Central was kind—perhaps overkind—to some police prosecutors in suggesting that it 371 was perhaps through fear of doing something which they thought was exceeding their functions that they would not give statements to the defence. I am not at all sure that in many cases they are not very glad to keep the cards close to their chests. Looking back to the days after the war when I returned to the Bar and frequently defended in magistrates' courts, I remember that I was met all too often by police prosecutors who said, "I cannot possibly show you the statements of witnesses" and who reserved them. Frequently to have done so would have shortened proceedings, made them less costly and redounded to the advantage of the administration of justice.
I do not deploy any argument from personal experience, but there may be all sorts of reasons why at the moment police prosecutors may not feel disposed to let the defence see the statements of witnesses whom they intend to call in summary proceedings.
I am bound to say that there can be no good reason. Therefore, subsections (1) and (2) of new Clause 3 have my unreserved support. I believe that they would have the unreserved support of all who are interested in the administration of justice, both from the point of view of justice and from the point of view of speedy administration. They will lead, when they pass into law, to many cases being tried before magistrates' courts instead of going for trial.
I cannot go along with the hon. Member for Hackney, Central on subsection (3). The present practice, which has the support and authority of the judges, as the hon. Gentleman showed in the extracts which he read from Archbold and from Lord Chief Justice Goddard, is that there is an obligation on the prosecution to give the names and addresses of witnesses who may be relevant and whom the prosecution do not intend to call. That is sufficient for the purpose of the administration of justice. It is not for the prosecution to do the work of the defence.
It is my experience, when justice demanded that a statement should be served on the defence, that prosecuting counsel are never reluctant to give their learned friends the benefit of a sight of that statement. Therefore, subsection (3) 372 is not necessary and subsection (4) is otiose. I hope very much that my hon. and learned Friend the Solicitor-General will be able to give the House an assurance—I look for nothing else—that the Government will concede that henceforth in the magistrates' courts defendants will be entitled in advance to a sight of the statements of the witnesses who are to be called against them.
§ Mr. Edward Lyons (Bradford, East)
I support my hon. Friend the Member for Hackney, Central. I shall not go over the ground which has alrealy been covered. We must consider the reality of the criminal in the magistrates' courts. Most criminals in those courts—criminals is the wrong term to use—or persons charged tend to be less than articulate. They are not always able to describe the circumstances in which an alleged offence was committed, just as they are not always able to tell a hard-pressed solicitor of the circumstances which would help their mitigation.
The reality of the situation is that counsel in the high courts rely heavily on social inquiry reports. They rely on those reports more than they rely on instructions from their solicitor to discover the background of the accused's private circumstances and history. Equally, counsel rely heavily, as do solicitors, on statements provided to them which give details about the circumstances of the offence.
What is lacking in the magistrates' courts, particularly when a man pleads guilty, is that the solicitor often does not have the prosecution's statements which give details about the offence. Those statements often include valuable matters in mitigation. If a defending solicitor does not see those statements he is not able to put forward relevant matters in mitigation. He is wholly in the hands of the prosecuting solicitor, who, if he misses an important matter or if he does not bring it out fully, might inadvertently put the defendant at a disadvantage. That is the situation in the higher courts when a committal for sentence with a view to borstal training is considered, when statements are not usually provided. We find there that both the court and counsel are at a disadvantage in dealing with the circumstances of an offence because there are 373 no statements before the court dealing with those circumstances.
It has always seemed to me—and I am not alone in this view—that committals for sentence suffer badly because there are normally no statements dealing with the prosecution case. If that applies in the higher courts it must equally apply in the lower courts. Therefore, for the purposes of a decent examination of mitigating circumstances the prosecution statements would be helpful to the defence. The lack of ability of the accused to explain fully the situation makes that a useful precaution. That is why I support my hon. Friend.
In his subsection (3) my hon. Friend phrases his proposed reform far too widely, because an obligation is there laid upon the prosecution to supply all relevant statements, even though the statements put before the court may cover the points made by additional potential witnesses whom the prosecution decided not to call.
§ Mr. Clinton Davis
Subsections (1) and (2) are so fundamental that I should be prepared to give way on subsections (3) and (4). Subsection (4) depends on subsection (3) anyway. I do not accept the arguments adduced by the hon. and learned Member for Solihull (Mr. Grieve) and by my hon. Friend. It is obvious that subsections (1) and (2) are so much more fundamental.
§ Mr. Lyons
I am most grateful to my hon. Friend. He must not assume that I am making the same argument about subsection (3) as the hon. and learned Member for Solihull was making. In the higher courts it is common practice to supply the names and addresses, and often the statements of witnesses who have made statements contrary to the statements of the witnesses upon whom the prosecution rely, or who will give evidence on matters germane to the case which are not dealt with in the evidence of the prosecution witnesses whose statements have been tendered. That is a thoroughly desirable practice. I have a feeling that it is not followed in the magistrates' courts.
The advantage of subsection (3) is that for the first time it makes an attempt, albeit in rather wide terms, to give a 374 statutory basis instead of what is now a case law basis for a practice of handing over statements of witnesses whose evidence conflicts with that of the witnesses upon whom the prosecution intend to rely. In the magistrates' courts, in particular, I believe that this practice followed in the higher courts is often not followed. There is an argument for saying (hat something should be done, but not in the wider wording of subsection (3).
I thank my hon. Friend for arranging a discussion on the matter, though I believe that he is not likely to achieve success, in this Bill at any rate.
§ Mr. Stanbrook
I do not share the good will that my hon. and learned Friend the Member for Solihull (Mr. Grieve) has expressed towards the clause, because it seems to me that it provides guilty people with extra opportunities to escape conviction. It is asking the prosecution to do the job of the defence. In recent years we have become accustomed to the defence in criminal trials being given greater and greater assistance to enable it to succeed, but this is ridiculous.
We have a system of law under which 95 per cent. of all crimes are dealt with in magistrates' courts. The effect of the adoption of the clause would be to impose a mountain of work upon prosecutions and police authorities. An enormous amount of paper would be required, apart from the time and labour of typists and police officers in compiling statements for the purposes of the clause. If any one wanted to gum up the works of the prosecution and the legal system of this country this is surely one way in which it could be done at a stroke.
The very concept of offering the whole of the prosecution evidence to the defence in trials in magistrates' courts is misconceived. Distinguished lawyers like my hon. and learned Friend the Member for Solihull may say that the defendant must know the case against him. Of course he should—and he gets that information. That is to say, he gets reasonable particulars. He is entitled to ask for them and if he does not get them he can insist, if necessary. The suggestion here is for an extension of the present procedure under which he will not merely be entitled to the particulars—
§ Mr. Grieve
Following my hon. Friend's argument to its logical conclusion I take it that he would be in favour of an amendment of the law which would deprive those going for trial on indictment of the statements of the evidence against them?
§ Mr. Stanbrook
I shall deal with that point when I come to it. What is being suggested in the clause is not merely that, as at present, particulars should be provided, but that the facts constituting the prosecution case should be provided, and, more than that, that the evidence on which those facts are based should be provided. We already have a system under which it is possible to provide the facts which constitute the case for the prosecution, so enabling defendants to decide beforehand how they should plead.
But the clause is asking for all the evidence. It has been asked by my hon. and learned Friend why there is any objection to the proposal when it is the system at present operated in cases on indictment. Apart from the fact that 95 per cent. of all cases are dealt with in magistrates' courts anyway—and that is a pretty weighty objection—there is a big distinction between cases heard on indictment and cases heard summarily, and that is the gravity of the offence.
It is possible to argue that certain cases are so serious and that the possible consequences for the defendants so great that they should be assisted with a full statement of the evidence against them at some stage before trial—that is to say, the stage at which the magistrates have to decide whether there is a prima facie case. That is all very well, but it does not follow that they should be so entitled with regard to any alleged offence, irrespective of its gravity.
I accept what the hon. Member for Hackney, Central (Mr. Clinton Davis) said about limiting the proposal to a certain range of cases. He excludes very small cases, of course, but he includes a large number of cases which potentially could result in imprisonment but which in most cases do not. A line has to be drawn somewhere, and it is proper to draw it at the level between magistrates' courts and the Crown Courts. It is not serving the interests of justice to require the prosecution to serve all its evidence to defendants in magistrates' courts.
§ Mr. Leslie Spriggs (St. Helens)
I have been listening to the hon. Member's line of argument carefully and as I have an interest in justice I wonder why he is arguing against the production of all available evidence. Surely a court is entitled to hear all of the evidence before it pronounces judgment or convicts, or otherwise. I cannot understand why the hon. Member is objecting to the use of evidence from both sides.
§ Mr. Stanbrook
I am sorry if I have opened the way to a misunderstanding. What is suggested in this clause is that the evidence should be made available to the defence before the trial. Of course, at the trial itself the evidence must be assembled, and it is the duty of the prosecution to produce all relevant evidence. What is here suggested is that before the trial, to enable the defence to assemble its case at trial, the prosecution evidence should be made available in written form. If this is so, I am saying that it is going too far in a direction in which we have been moving for some time in giving the edge, an extra advantage, to many defendants. It will result in more cases going for trial in the hope of picking holes in the prosecution case.
An example I have in mind is that of the offence of driving with excess alcohol in the blood. At the moment most of those cases are decided in magistrates' courts although they could be tried on indictment. Invariably a certificate is served before the trial showing that an analysis of the blood indicates a figure in excess of 80 milligrammes of alcohol per 100 millilitres of blood. When thai certificate is served, the defendant knows how he should plead. If this clause is adopted the future situation will be that the defendant will not only get the certificate; he will get all the evidence, all the facts on which the police will act, the details of the arrest and subsequent behaviour. That is something to which he is already entitled if he elects to go for trial and to put the community and the system to that amount of inconvenience and trouble.
What is suggested is that this should apply at the magistrates' court stage before trial. In those cases a defendant who formerly would have pleaded guilty on the basis of the certificate will ask whether he can get round it because the 377 evidence shows that the officer was not in uniform at the time the arrest was made, or did not use the time-honoured words, or did not go through the appropriate processes after arrest. This clause would lead to an unworkable situation and I am wholly against it.
§ Mr. Edward Lyons
Is the hon. Gentleman aware that any solicitor who writes to the court and says that his client intends to plead not guilty can obtain these statements? All that he has to say later is that his client has changed his mind and is pleading guilty. Any solicitor who is prepared to stretch the truth a little gets the statements anyway. It is only those who refuse to pretend that their client is considering an alternative plea who do not get the statements.
§ Mr. Stanbrook
The hon. Member may be speaking from experience in his part of the world. As far as I know that practice is not followed in the London area and I do not believe that the Metropolitan Police go along with that sort of practice. Whenever I have advised an attempt to secure the written evidence of the prosecution before going to a magistrates' court on a possible election for trial it has never been possible to secure such papers. But if a solicitor gives a pledge that there will be an election for trial, it is possible to obtain the papers. There is an important distinction between the two. The sheer volume of work justifies the distinction.
On subsections (3) and (4) I believe with my hon. and learned Friend the Member for Solihull that it would be a retrograde step to require the prosecution to supply the statements made by witnesses whom it does not intend to call. That is yet another instance of the effect of the clause being to disable the prosecution. A statement is often taken from an alibi witness. Such a statement is valuable to the prosecution. If the prosecution is then required to hand over to the defendant, it is robbed of a weapon for getting at the truth when that witness, whose name and address has been supplied to the defence, comes to the court with a different story. Those are perfectly legitimate devices and practices in a trial aimed at getting at the truth. The overall effect of this clause is to prevent the courts getting at the truth.
§ 11.0 p.m.
§ Mr. S. C. Silkin
I always like to hear the hon. Member for Orpington (Mr. Stanbrook) address the House on these matters before making my own speech because he so frequently confirms me, as he has tonight, in the opposite point of view.
I am sure that everyone, whether here or outside the House, would agree that we should always aim at open justice openly arrived at. Where we may differ is on how far we should go in that direction, whether for administrative reasons and the additional work load that may be caused or whether for reasons of fairness between the parties.
My hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) has done right to make us stop and think again whether existing procedures are wholly satisfactory. In Committee on the Criminal Justice Bill, which became an Act in 1972, I moved an amendment in somewhat similar if perhaps rather more elaborate terms relating to trials by indictment. The Minister of State, Home Office, who was here at the beginning of the debate, tended to take the view that the proposals were unnecessary, but at the end of the debate, having heard several hon. Members, including his hon. and learned Friend the Member for South Fylde (Mr. Gardner), who welcomed the amendment, he was constrained to say that he would look again at that matter, that he accepted the views of those who had experience in practising in the courts that the present situation was not satisfactory and that he would consider what steps might be taken to make improvements. Whatever happens to the new clause tonight, I hope that the Solicitor-General will be able at least to match what his hon. and learned Friend said on that occasion and give a similar undertaking on this new clause.
I accept, as I am sure does my hon. Friend, that his new clause is cast in language which may be a little wide and that in its present form it would not be too easy to incorporate it precisely in the law, but the basic principle at which he is aiming is a desirable one. I would be more inclined to put the emphasis on subsection (3) of the new Clause, which is the matter of substance, and on subsection (2), which applies to the whole 379 of the new clause, then perhaps on subsection (1), which applies to those whom the prosecution is calling as witnesses.
One can perhaps see that there may be an argument about the view that, if the prosecution is to be required to hand over its statements to the defence, it would be equally right for the defence to hand over to the prosecution the statements made by witnesses whom the defence proposes to call. That is a possible view.
But when we come to subsection (3), we are dealing with people who have been interviewed, probably in most cases by the police but sometimes at the instance of a private prosecutor whose solicitor may have taken statements, and the prosecution, having obtained these statements has decided that they are witnesses it does not expect to call, perhaps because what they say is of no relevance, in which case no possible harm can be done by allowing the defendant to see their statements.
It may be that what they say merely confirms what prosecution witnesses are already going to say, and for that reason it is not thought desirable to add to the time taken up by the case in calling them. Again, if that is so, it can do no possible harm. Indeed, as my hon. Friend the Member for Bradford, East (Mr. Edward Lyons) pointed out, the weight of such statements may be sufficient to persuade someone who is guilty, but who up to then is determined to plead not guilty, to change his mind.
There is the third case—that of a witness's statement where the witness tells a story which is in conflict with the evidence given on behalf of the prosecution by other witnesses. If we accept the argument of open justice, openly arrived at, it is not right that a defendant in a serious criminal action, where there is a liability to imprisonment for a term exceeding three months, should be deprived of the right of seeing statements which the prosecution has discarded because they conflict with the evidence of other witnesses.
Of course, it would be for the defence to decide whether to call those witnesses. It may be decided that they were not suitable witnesses. But there may be gleaned from their statements material 380 which the defence, because of the limitations upon a defendant in obtaining material as compared, for example, with the police, would wish to bring before the court by calling the witnesses, which may put an entirely different light on the case as presented by the prosecution. So far from that taking up undue time of the court, that is surely the sort of case in which a defence which suspected that such material might be available would, following present practice, wish to go to a higher court.
In a higher court the defence would know that the practice would enable it to get those statements, whereas in the lower court it would not. Therefore, from the point of view of open justice and from the point of view of avoiding an undue number of cases which are triable on indictment going to the higher court —and finally an undue number of cases where there should be a plea of guilty being fought on a plea of not guilty—it would seem to me that the principle of subsection (3) ought to be seriously considered by the Government.
I hope that in reply the Solicitor-General will say that what has been said tonight will be carefully considered, and that whatever can be done to put right any deficiencies in the system which now exist will be done in one way or another by the Government either by legislation or by some form of circular addressed to the magistracy.
§ The Solicitor-General
In regard to the last few words of subsection (1) of the clause,statements … taken from witnesses whom it is proposed to call or to tender to give evidence ",this matter is dealt with in the Criminal Justice Act 1967. So long as statements are given not less than seven days beforehand, they have to be provided. Therefore, I imagine that the hon. Member for Hackney, Central (Mr. Clinton Davis) is speaking of cases in which witnesses will attend a hearing.
§ Mr. Clinton Davis indicated assent.
§ The Solicitor-General
Inquiries made recently have disclosed a situation which was not known when this matter was discussed in Committee. As was forecast by my hon. Friend the Member for Orpington (Mr. Stanbrook), a great deal 381 of extra work would be involved. It is estimated that the number of cases where copies of statements would be or could be requested would be in the region of 500,000 a year. It will be seen what a huge amount of extra work would be involved for the police, and as a consequence there would undoubtedly be a clogging up of the magistrates' courts.
§ Mr. S. C. Silkin
Is that the total number in relation to subsections (1) and (3), or subsection (1) only—and how many cases would be involved in that figure of 500,000?
§ The Solicitor-General
That is the number involved if subsection (1) of new Clause 3 were to be accepted. Under subsection (2) the defendant, in the absence of legal representation, would be told of this right and one imagines that in most cases he would say "Yes, I should like it to be provided". It is impossible to estimate on how many occasions his legal representative would require it. Again, it is a fair assumption that in practically every case he would. This would range from dangerous driving cases right across the board, so long as the provision of a liability to imprisonment for more than three months applied.
It is true that at the moment there may be occasions when adjournments are required because at some stage the defence has been caught unawares. But the number of adjournments which would be required if this provision became law would be enormously greater. So the requirements of manpower and adjournments make this provision, in our view, unacceptable.
There is a safeguard already. This applies not only to the kind of case which has been mentioned, in which one lets it be known that one's client intends to go for trial, and then, having received the statements in advance, decides to have the matter tried summarily. It also applies to the kind of case in which, because there may not be sufficient knowledge of the case against the accused, his legal advisers advise him to go for trial, and he decides, during the course of that hearing, subject to the ruling of the court, to have the matter dealt with summarily. Several witnesses may have attended and given evidence 382 but not been cross-examined, because the defence was reserving its rights. But if they then ask for the case to be dealt with summarily, they can ask for those witnesses to be recalled, and can then cross-examine. So there is that safeguard, even after full committal proceedings.
On subsections (3) and (4), on which the hon. and learned Member for Dulwich (Mr. S. C. Silkin) twice used the phrase "open justice openly arrived at", it is right to remind him that the statements of which we are speaking are documents which may or may not be handed from one side to the other. "Open justice openly arrived at" is concerned with evidence by witnesses in front of anyone attending the court. There is a strong distinction which should be drawn here.
In the case of a police inquiry, there may be hundreds and sometimes thousands of statements taken from many people, all of them apparently necessary, some of which, on analysis, turn out to be irrelevant. Those statements may not even be typed, they may contain hearsay evidence, matters of great privacy and delicacy to the maker of the statement, may in some cases be defamatory, perhaps causing the risk of grave domestic trouble, or giving details of previous convictions of the accused or other witnesses. These are matters which it would be wrong to broadcast.
Under the present system, the names and addresses of those witnesses who have been interviewed and whom the Crown has decided not to call are, if their evidence is relevant, provided to the defence solicitor. If, during the case, any witness is called who has made a statement inconsistent with his evidence, it is a practice for that inconsistent statement to be handed to the defence.
But if one is to provide every statement, taken from every person, it will, first, place a great burden on somebody to decide which are relevant statements and which are not, and it will, second, need a great deal of editing of the statements to cut out the irrelevant, the personal and the secret matters which are in no way connected with the issue which is being tried by the court.
One may get other examples where there may be a witness who is not treated 383 by the Crown as being reliable or credible, and there is the case where someone interviewed may well eventually be called as a witness for the defence. In those circumstances it would be quite wrong in the interests of justice—the interests of justice in this case being that the truth is eventually arrived at—that that person should have the advantage, weeks or months later, of having given to him, through the person to whom he is going to speak, the legal advisers, a resume of what he has said. This will prevent in this case the prosecution from having the very effective weapon which sometimes occurs when a man provides an alibi and gives an account which supports the defendant's case and has put to him a statement which he made after the event which is entirely contrary.
§ Mr. Clinton Davis
Reverting to subsections (1) and (2), which are far more fundamental, the hon. and learned Gentleman is no doubt aware of the fact that a large number of prosecutors make available statements to accused persons, and more particularly to their advisers, before a hearing. Some more sanguinary prosecutors will not do that, as the hon. and learned Member for Solihull (Mr. Grieve) indicated. Disappointed though I am with the Solicitor-General's reply, will not he be prepared at least to go thus far—to say that a directive from the Home Office, or the appropriate Government Department, should be made that, unless prosecutors consider it contrary to the interests of justice and the public interest, they should divulge to the defence the statements prior to a hearing, albeit not in the requisite form under the Criminal Justice Act? This at least would go some of the way towards what I have sought.
§ The Solicitor-General
In a sense, it may be that the hon. Gentleman is a mind-reader. I should have come to that point a little later. Although it may be said by him that subsections (1) and (2) are the more important, other hon. Members have dealt with subsections (3) and (4) and I felt it right to accord to them the same courtesy that I have accorded in respect of earlier subsections.
§ Mr. Ernie Money (Ipswich)
There is one aspect of this matter with which I wish my hon. and learned Friend to deal 384 shortly. There is still a limitation where a name is given to the defence if it is a case of a police officer. In some police forces that police officer can be interviewed only by the senior officer of his own force. Will my hon. and learned Friend make some general emphasis to police forces that police witnesses should be treated in the same way as any other witnesses?
§ The Solicitor-General
It may be that the practice varies. I do not know of which police force my hon. Friend is speaking. I suspect that it may be the force of which I am thinking. If he will give me the details I shall certainly look into that matter.
There are criticisms about the drafting of the new clause. I shall not deal with those. Concerning the future, I should prefer to see it become a matter of practice rather than of law. I am not sure that it is necessary that the actual statements of the witnesses for the prosecution should be handed over, literally, to the defence. In my experience at the bar, one was usually afforded by the prosecuting solicitor or prosecuting counsel a fair summary of what the case was, which was quite sufficient. One did not need the details. Sometimes, in a way, it was almost an embarrassment to see the actual statement. I should prefer to see it in any event as a matter of practice, as in so many of the ways in which the law works out between both sides, particularly when represented by counsel and solicitors, it works out that way satisfactorily. It would be very difficult to do it as a matter of legislation.
I leave the matter in this way: whilst inviting the House to reject the new clause, I undertake to reconsider the question, and I shall certainly invite the comments of the Criminal Bar Association and any other body to which the hon. Member for Hackney, Central, may draw attention. It is certainly something that I am prepared to reconsider.
§ Mr. Clinton Davis
I am grateful for the Solicitor-General's final observations. At the outset of his remarks I thought that he would express a categorical refusal even to consider my observations. I feel that at some stage it would be desirable to have information before the House based upon the expert knowledge of the Criminal Bar Association, the Bar 385 Association, the Law Society, the London Criminal Courts Solicitors Association, and the rest, because this is a matter about which I know many people have felt deeply for a long time.
In those circumstances, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.