§ Motion made, Question proposed, That this House do now adjourn.—[Mr. David Hunt.]10.35 pm
§ Mr. Ivan Lawrence (Burton)
I am most grateful to Mr. Speaker for his kindness in selecting this debate. With it I return to a subject that I have raised more than once in the House and most recently on Second Reading of the Police and Criminal Evidence Bill on 30 November last year.
In a nutshell, I ask that defendants in magistrates' courts should have the right to prior notice of the evidence against them—that is, the right to see the statements on which the prosecution will rely. This suggestion is so sensible, desirable and relatively simple to implement that it is a wonder that it was not implemented years ago.
It is sensible and desirable because it would substantially improve justice if it were introduced. It is a truism that justice delayed is justice denied. The practical effect of keeping the defendant and his legal advisers in the dark about precisely what is being said against him and by whom is often to cause ridiculous and unnecessary delay in the magistrates court.
As the Law Society and the Senate of the Inns of Court said in a submission to the Home Secretary and the Lord Chancellor in January 1981:The biggest single source of waste in criminal legal aid in the magistrates court is unnecessary waiting time.Every delay in court proceedings brings lawyers and the system into disrepute.
How is delay caused by keeping the defendant in the dark? First, no solicitor or barrister worth his salt can advise his client on what is a proper plea if he has no idea of the case that he has to meet. Defendants often give garbled and hopelessly inadequate accounts of what happened and pleas of not guilty are entered because the full allegation is not known. As the president of the Law Society, Sir Max Williams, said in a speech to the society's national conference in 1982:There can be no doubt that many pleas of 'not guilty' are entered in summary trial cases simply because the defence solicitor is unaware of what is going to be said by the prosecution and so has been unable to advise and take meaningful instructions.A plea of not guilty means that instead of dealing with the case there and then there must usually be an adjournment to a date several months hence when the witnesses may not be available or may have forgotten what they were going to say.
Secondly, if one does not know what the witness in a criminal trial in a magistrates' court will say until he has said it, one often needs to ask for a short adjournment to take instructions on cross-examination or a longer adjournment to call relevant witnesses for the defence.
Thirdly, a properly prepared case is not infrequently a more efficiently presented case with less time wasted in the course of the trial.
Fourthly, it is often necessary to know what the witnesses have to say before a decision can be made as to whether to go to the Crown court for trial. In theft cases, for instance, counsel often advise clients to go for trial at the Crown court in order to have a proper opportunity to consider the case and to prepare a defence. The James committee said in 1975: 505While we cannot claim that a greater measure of disclosure would have a dramatic effect on the distribition of business, we believe that it would make a significant contribution towards preventing cases being committed for trial unnecessarily.It went on to say:it is, in our view, most desirable in the interests of justice that defendants should he fully acquainted with the case against them as far as it is practicable to achieve this.I might add that trial by jury is a far more expensive process than trial before a magistrate and, quite apart from the delay involved, the taxpayer usually has to foot the bill.
The current absence of any requirement to serve the prosecution statements on the defence in the magistrates court thus causes delays and adds to costs. Clearly therefore, it would be sensible to change the system. I am not alone in that view. It seems that I am merely agreeing with almost everyone else, including Parliament itself. In section 48 of the Criminal Law Act 1977 Parliament decided that rules of court should be made to provide for such disclosure by the prosecution.
In 1966 a committee of Justice made the same recommendation, as did the James report of 1975, which stated:The overwhelming body of opinion was that there is no objection in principle to making available to the defence the witness statements upon which the prosecution intends to rely".In 1977, Sir Henry Fisher made the same recommendation in his report on the Confait case when he said:All statements taken by the police should be diclosed by prosecuting counsel to defence counsel in the absence of any special reason to the contrary.He further stated:Disclosure should be made whether or not the defence ask for it. Any other rule will put unrepresented defendants, and defendants represented by inexperienced solicitors or counsel, at a relative disadvantage. Moreover, there may be cases where defence counsel reasonably but wrongly believe that there is no point in asking, whereas there are in fact statements in the possession of the prosecution which would help the defence.In 1981, the Philips Royal Commission report on criminal procedure made the same recommendation, in the following words:We endorse the principle now established in statute that the requirement for disclosure by the prosecutior should also apply in cases tried in magistrates' courts.The Philips report, however, took a different view from that of Sir Henry Fisher on one matter, when it said:The requirement for disclosure should operate only on request by the defence. It is not, in our view, essential to make it a requirement in all cases, since these will include some where the defence will neither need nor wish for disclosure.Sometimes the causes that I advance are thought by some to be a long way ahead of their time. In this matter, however, I am well and truly behind the times.
Why, then, has nothing happened? Why are we still waiting? Someone somewhere seems to have thought that the serving of the statement might be expensive, that the cost of getting the police officer to photostat the relevant pages of his notebook, type out his statement and send it to the defendant's solicitor or send on a copy of any typed statement already made would be prohibitive. In the average magistrates' court case the cost will be little more than that of a few sheets of paper, some time on the Rank Xerox machine, postage and typing. Thos costs must be set against the massive cost involved in the waste of time caused by delays.
I shall quote again from the speech by Sir Max Williams in 1982:I consider that the savings in prosecution costs and in defence costs, substantially funded by legal aid, far outweigh the 506 cost of providing copies of statements to the defence, with the added advantage of avoidance of much anxiety and distress of clients. Is it not high time that the section was now implemented?So what do we have? We have a working party set up in 1977. I am quoting from a letter written to me in September 1982 by my hon. and learned Friend the then Minister of State, Home Office. He said:You will be aware that shortly after the Criminal Law Act 1977 was enacted a working party was set up under Home Office chairmanship with the task of examining the feasibility of introducing a scheme for disclosure which would take realistic account of the practical implications, particularly in cost terms, for the police and the courts. The working party includes representatives of the police, prosecuting solicitors, justices' clerks, and, since the end of last year, the Law Society and the Bar … Arrangements for the establishment of pilot schemes on these lines are now in hand but it will be some time, as you will realise, before we are in a position to draw conclusions as to the implications for the implementation of section 48.The Home Office has set up a pilot scheme in Newcastle, and it is thinking of setting up another. Needless to say, it is the embodiment of the delaying tactic. There must be some institution somewhere which delays dealing with delays. The Home Office has gone off on a tangent, of course, and is about to impale itself upon an almost irrelevant proposition.
I quote again from my hon. and learned Friend's letter:At its last meeting, in March this year"—last year—the working party took the view that the most promising line of approach would be to draw up a scheme whereby disclosure could take place in the form of a summary of the prosecution case.The working party is considering the idea of a summary. The proposition that disclosure could be acceptable in the form of a mere summary of the prosecution's case must be nonsense. No counsel or solicitor, on the strength of a short summary of the allegation, could advise a client who is saying, "Not guilty," that the evidence against him is strong and that it would be in his best interests, if he is guilty, to face his responsibilities.
One has to know who the witness is, precisely what is being said, how it is being put and and by how many witnesses before a client can be properly' advised that a not guilty plea might be bad for him. What would be the saving in delay by that device if lawyers took no notice of it?
I have asked for the debate because I believe that time is being wasted unnecessarily by the pilot schemes. While we wait, the legal profession is being attacked unjustifiably for such delays. That is what always happens. We are blamed for such delays. While we wait, the delays, the cost and the injustice to society and the accused continue and have continued since 1977.
We all want to see a more efficint criminal system. That means cutting unnecessary delays. There is here identified one obvious source of such delay. It can be cured easily by serving statements on the defence. In principle the law says that it should be done. Everyone agrees that it needs to be done urgently. Surely there is no point in wasting more time considering the possible minutiae of the cost, because the cost of doing little or nothing is far higher. I ask my hon. and learned Friend the Minister: cannot we have a decision and some action?
§ The Minister of State, Home Office (Mr. David Waddington)
I can honestly say that I am grateful to my 507 hon. and learned Friend the Member for Burton (Mr. Lawrence) for raising this undoubtedly very important subject. "Justice delayed" is, indeed, "justice denied", and we should certainly look carefully and sympathetically at any proposal that might assist the speeding up of the trial process. This must be particularly so in the case of the magistrates' courts where the vast majority of criminal cases are disposed of. My hon. and learned Friend has put forward a cogent argument to the effect that advance disclosure would help to expedite magistrates' court trials. The Government accept that there is a very strong case in principle for advance disclosure, and my right hon. and learned Friend the Home Secretary is determined that progress should be made on this matter, so my hon. and learned Friend is pushing at a door that is more than just ajar. As long as ago as 1975, the James committee's report on the distribution of criminal business between the Crown court and the magistrates' courts recommended that:persons charged with offences triable either at the Crown Court or summarilyshould—have a statutory right to receive, on request, copies of the statements of the witnesses on whose evidence the prosecution proposes to relyor if—statements have not been prepared … a summary of the facts on which the prosecution intends to rely should on request be supplied to the defence instead".As has been said, the committee felt that advance disclosure would make a significant contribution towards preventing cases from being committed for trial unnecessarily. It also felt strongly, however, that it wasdesirable in the interests of justice that defendants should be fully acquainted with the case against them as far as it is practicable to achieve this".Clearly, if a defendant is fully aware of the case that is to be put against him, he can make a more informed decision not only on the kind of trial to elect—summary trial or trial by jury at the Crown court—but also on whether to plead guilty or not guilty. That is fairer to him: and it should also reduce the amount of time courts have to spend on individual cases as a result of more pleading guilty having seen the evidence stacked against them. My hon. and learned Friend has described how section 48 of the Criminal Law Act 1977 permits the making of rules by statutory instrument to require a prosecutor to serve on a defendantadvance information concerning all, or any prescribed class of, the facts and matters of which the prosecutor proposes to adduce evidence".But it is a provision which six years on has still not been brought into force.
In the discussions on the Criminal Law Bill, the Government of the day estimated the cost of introducing a scheme of advance disclosure in either-way cases—cases tried summarily or on indictment—as about £4 million per year. That was, however, no more than a rough estimate, it being recognised that the cost depended on the method of disclosure which might eventually be adopted. After the Bill became law, therefore, a working party, which included representatives of the police and prosecuting solicitors, was established to look into the feasibility of such a scheme. It tried to assess the costs of advance disclosure in either-way cases both by means of edited witness statements, and by means of summaries of the prosecution case. A survey of the current prosecution 508 practices of all the police forces in England and Wales was undertaken. This proved a complicated task because of the wide disparity in the administrative practices of police forces in recording information at various stages of the criminal process. It was not until late 1981 that the chairman of the working party was able to report his interim conclusions. These, however, were to the effect that a system of advance disclosure based on summaries would be cheaper nationally than one based on statements —largely because a number of police forces do not at present as a matter of routine take statements at an early stage of prosecutions.
It came as a surprise to me—and I am sure that it is coming as a surprise to my hon. and learned Friend—to learn that it is not a question of adjusting present practice and putting on to a Xerox machine existing statements. Surprisingly enough, a survey conducted in 1980—and one hopes that there have been certain changes since then —showed that in only 21 of the 43 police forces in the land was the prosecution evidence always available in the form of witness statements at the time of the taking of a plea. In the remainder of the forces, the evidence of at least some of the witnesses was available at the time of the plea only in the form of notes in a police officer's note book or as some form of summary.
It was presumably as a result of that that the committee came to the conclusion that the costs of s scheme based on summaries were thought to lie in the range of £1.5 million to £4.5 million, and one depending on statements between £3.5 million and £16.5 million. The study further concluded that summaries would require at least 40 to 50 extra full-time police officers, while statements would need at least 150 to 200.
I must make it plain that those figures take no account of any savings that might flow from, for instance, fewer elections for trial, and that is one of the keys to the matter. But they are still significant. Two very different estimates have been made of the cost of the provision of statements, on the one hand, and the cost of the provision of summaries of the prosecution case, on the other.
§ Mr. Lawrence
Is there not something potentially wrong with a system of justice where a witness' recollection of what happened is not consigned to writing so that he can recall it accurately with an aide-memoir when, weeks or months later, he gives evidence in the magistrates' court? If it is expensive to make these statements, would it not be a significant advance along the road towards justice to require such statements to be made?
§ Mr. Waddington
I thought I had made it plain that I was not saying that the present system was anything like ideal. I was explaining how much progress had been made. We must face the fact that, if so much progress remains to be made, considerable resources are involved.
Early last year the working party, which by then had been joined by representatives of the Bar and the Law Society, recommended that pilot projects should be established in two police force areas to assess more precisely the cost to the police of schemes of advance disclosure and to judge the effect disclosure might have on the way in which defendants exercised their choice of mode of trial and on their plea. It was a little unfair of my hon. and learned Friend to describe that as no more than —he said it was the embodiment of—delaying tactics.
509 The first project, based on summaries of the prosecution case, started in Newcastle on 1 November last year and will last until the end of this coming October. A second scheme, based on the supply to the defence of copies of witness statements, has taken much longer to get under way but will start in a week or two in the Metropolitan Police H Division and Thames Magistrates' Court in Tower Hamlets. Like the Newcastle project, the London one will run for a year.
Both projects are being conducted by the VERA Institute of Justice, a New York-based research institute, on behalf of the Home Office. The institute will in due course produce a report on the lessons learnt from the two projects and will also take account of several pre-trial review schemes which have been initiated in a number of courts. The full report cannot be ready until the summer of 1984, but an interim report on the Newcastle project is expected soon. On the basis of that report and any information derived from the London project, we shall consider how rules under section 48 should be framed. There should be no undue delay. We hope to decide how to proceed by the end of the year. I hope that there is some modified rapture as a result of that statement.
I appreciate that the title of the debate covers all summary cases and not only either-way cases. However, I hope that I have made it clear that the pilot projects are concerned only with the latter. We must proceed carefully, but it is recognised that we cannot delay matters when changes have to be made. It is worth repeating that which was reported by the James committee in paragraph 219. The report states:It would be quite impracticable, and indeed unnecessary, for statements to be served in all, including the most trivial summary cases.In 1981 a total of 1,770,000 summary cases came before the courts, and a high proportion of them must have been fairly trivial. Against that background, the approach of the James committee seems reasonable. If every case were to be initially adjourned long enough for disclosure to take place and for the defendant to consider, in the light of the material disclosed, how to plead at his trial, it might slow down rather than speed up business in the magistrates' courts. The James committee went on to suggest some discrimination between offences. It stated:The eventual aim should be to extend the scheme to all imprisonable offences and other summary offences which merit it.We do not have precise information on the likely effect of disclosure on either-way cases and we stall need to think carefully about whether and how to extend disclosure to summary cases.
§ Mr. Lawrence
Was not the James committee considering cases that went to the Crown court, which was 510 the remit of its consideration? Is there not a case for statements to be made available to the defendant on request in cases that are not going to the Crown court?
§ Mr. Waddington
That is something that we shall have to consider. We must take one step at a time. First, we must make some progress in respect of either-way cases. My hon. and learned Friend has made out a most cogent case for that to be done. I hope that I have made it clear that we believe that some progress must be made in that area and that it will be made.
I have read most interesting reports on pre-trial review schemes that are operating in Chatham and Leeds, and my right hon. Friend will take them into account when considering how best to implement section 48. The essential element of all the existing schemes is that they are informal and depend upon good will between the various parties involved. They rest on local agreement on how best to conduct such a review, including agreement on the extent of disclosure, and I do not doubt their value. However, the implementation of section 48 will rest on rules that will exclude the informality of these local agreements and which cannot necessarily assume the good will of all the parties involved. For that very reason, we must ensure that we get our own scheme right.
A Home Office working group was set up in 1981 and was specifically charged with reviewing the sort of help that might most usefully be given to courts in reducing waiting times. The report contains a number of suggestions for improvements. In May 1982 it was sent to clerks to justices, clerks to magistrates' courts, chief executives of paying authorities and to representative bodies concerned with the magistrates' courts. The report has been generally welcomed. Most of the specific suggestions that were made relate to measures that courts themselves could take to improve their procedures and reduce waiting times. It is clear that both individual courts and the professional associations associated with court work have given close consideration to those suggestions and that many courts have adopted some or all of them. The report also contained more general recommendations as to how the Department could foster greater efficiency in the working of the courts by, for instance, spreading information about good practice, and those are currently being considered within the Home Office.
I hope that I have said enough this evening to assure the House that the Government will not drag their feet over the question of advance disclosure. We shall also continue to study other ways in which the efficiency of magistrates' courts can be improved and delays reduced.
§ Question put and agreed to.
§ Adjourned accordingly at five minutes past Eleven o' clock.