POWER TO ORDER PREPARATORY HEARING (Hansard, 14 May 1987)

§ Mr. Mellor
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Lords amendments Nos. 9 to 35.

§ Mr. Mellor
All the amendments relate to the preparatory hearing procedures. The bulk of them make the distinction called for by the Criminal Bar Association between a defendant and his lawyer for the purpose of the preparatory hearing. On that basis, I hope that the amendments will be welcomed by the House.
Amendment No. 20 responds to the concern expressed by the Opposition in another place and makes the obligations upon the defence at the preparatory hearing a little less specific than they were. I accept that the wording that has been substituted follows the relevant part of the Roskill report—paragraph 6.82. In no sense do we resent the change, because it seems eminently proper. It is faithful both to the Committee's views and to our central aim of allowing the preparatory hearing to be an effective procedure for defining the issues to be put to the jury.
Amendment No. 31 also responds to a point made by the Opposition in another place. It is taken from a useful precedent in the Police and Criminal Evidence Act 1984, which allows a jury to draw such inferences as appear proper from a refusal to provide an intimate sample in a police investigation. The parallel seems to us to be apt. When one is suggesting that inferences of that kind be drawn, there is some advantage in statutes, particularly those that follow closely upon each other in time, setting the parameters and using the same phraseology. The amendment achieves that. I commend the amendments to the House.

§ Mr. Chris Smith
We give a warm welcome to the amendments, especially those that have been persuaded upon the Government by the Criminal Bar Association and those that were moved by the Opposition in the other place. We give a special welcome to amendment No. 20, because it gives a much more general interpretation of the 432 terms that must be set out by the defence at the preparatory hearing. It follows Roskill and is something that we pressed upon the Government in Committee. Therefore, I am pleased that, with the assistance of the other place, it is to be included in the Bill.
There is one question that I wish to ask of the Minister, the answer to which I suspect is probably easy and technical. In respect of amendment No. 35, the principal change that seems to be made, especially by subparagraph (b), is that material may not be disclosed without the consent of the person who supplied or gave it. In the original form of the Bill it was without the consent of the defence. I suspect that in some circumstances, only a limited number, they may he different people. I should be grateful for an indication from the Minister of the Government's thinking on that. I suspect that we have no quarrel on the matter, but it would be useful to have a small amount of clarification. With that sole and small question, I should like on behalf of the Opposition to give a warm welcome to the amendments.

§ Mr. Bermingham
My hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) is too modest. The House may remember that amendment No. 20 follows concerns expressed in Committee during the passage of the Bill. The original draft of the Bill required the setting out in some detail of exactly the nature of the defence that was to be advanced. That was a breach of the long-standing practice by which people were under no duty to reveal their defence. The Bill in its present form merely asks the defence to state the issues upon which it will seek to challenge the prosecution case.
A considerable number of cases set out along one track and people think that the defence will do one thing rather than another. However, because of issues brought to light by way of cross-examination or otherwise, the whole nature of the defence can change as the case progresses. Under the provisions of amendment No. 20, that will remain so and people will not feel restrained or restricted as would be the case if the defence had to be advanced along the lines disclosed in the preparatory stages.
This is a sensible amendment which all practising criminal lawyers will welcome.

§ Mr. Mellor
Again with the leave of the House, I am glad to say that I welcome the reception for these amendments. I hope that the whole manner in which the Government have dealt with this Bill is characterised by the fact that we accept good advice when we receive it. I accepted many amendments in Standing Committee, some of which were significant. My noble Friend the Minister of State, Home Office did the same in the other place. Far from that being a sign of weakness, it is a sign of strength when we can gather together and draw on experience throughout the Chamber on technical matters that generate no partisan differences. On the whole, these matters did not generate such differences.
The hon. Member for Islington, South and Finsbury (Mr. Smith) asked about amendment No. 35. This amendment follows directly from the invitation to us by the Criminal Bar Association to distinguish between the accused and his lawyer. All references to the defence have been altered in order to be more specific. If there is any additional significance to that change, I shall be happy to drop the hon. Gentleman a note. These are technical 433 drafting amendments and I am assured that they have the effect only of meeting the point that I think we all agree ought to be met. There is no additional significance to them.