HC Deb 21 April 1995 vol 258 cc494-502

Motion made, and Question proposed, That this House do now adjourn.—[Mr. MacKay.]

2.34 pm
Mr. Julian Brazier (Canterbury)

One of the most welcome features of my right hon. and learned Friend's tenure as Home Secretary and of the tenure of my hon. Friend the Minister of State, whom I am pleased to see on the Front Bench, has been the refreshing way in which they have both stressed again and again that the purpose of our criminal justice system is not just to run through legal technicalities and provide income for lawyers. We shall restore confidence in the courts only when the public believe that a fair balance has been struck between the rights of the accused and the rights of the victim and society at large. Ministers are right to say that most people believe that the pendulum has swung too far in favour of the accused—although the most recent Criminal Justice Bill did a little to bring it back in the other direction.

The issue under discussion today—prosecution disclosure—goes to the very heart of the criminal trial process. I have limited my comments to the prosecution side of disclosure simply because we would cover too much territory in a short debate of this sort if we looked at the other side in full. In passing, however, I might add that the hints dropped by Ministers that they are looking at much broader disclosure by both sides are extremely welcome. I am sure that that represents the way forward for trials.

My particular concern is with the so-called cracked trial, in which we usually find that a strong case against a professional criminal is abandoned at the outset because the defence insists on disclosure of an informant's name. I offer four examples. In 1992, in the case of Regina v. Appleton, there had been a burglary of an antique shop in the course of which £50,000 worth of goods were stolen. As a result of a tip-off, a police officer was able to make a purchase from Mr. Appleton, the defendant. At the trial, the defence argued "agent provocateur" and the judge insisted that the name of the original informant be disclosed. The trial had to be abandoned.

Again in 1992, in the case of Regina v. Arnold, an undercover police officer offered to buy 5,000 ecstasy tablets from Mr. Arnold. At the subsequent rendezvous, the defendant was caught with the tablets on him, but again the defence claimed "agent provocateur". Again, the judge accepted leave for disclosure of the original informant's name and the case had to be abandoned.

In the third case, in 1993—Regina v. Wiggan—the police received a tip-off that a house was about to be burgled, and they caught the defendants "on the job". One of them assaulted a police officer. The defence came up with an ingenious line of argument—that the defendants had been put up to do the job by the owner of the house to help him to justify past insurance claims. That line of defence could be pursued in court by cross-examining the owner, but the defence also insisted, allegedly in the interests of a fair trial, that they needed the name of the original source who led the police to stake out the house. This case, too, had to be abandoned.

Finally, last month in Kent Crown court, two defendants, Messrs. Bowles and Wood, after a very long, expensive and at times dangerous operation by undercover agents, were captured with 20,000 ecstasy tablets on them. Their activities had originally been reported by an informer. The defence insisted on knowing the name of the informer, and the judge, with that lack of courage that seems characteristic of so many of our modern judges, and with no reason for the disclosure having been given by the defence, again insisted on disclosure of the name. Once again, the trial had to be abandoned.

At a time when a range of authorities, from some of our most innovative police constables right through to the Audit Commission, are saying that the future of policing lies in better intelligence, police officers are finding that there is no point in better intelligence if the courts take no cognisance of the need to protect intelligence sources when trials come to court.

The issue is not limited to the agent provocateur argument. There is a wider issue that is heavily dealt with in the report of the Royal Commission on criminal justice, including fishing expeditions and paper blitzes that bog down the prosecution. I understand that my right hon. and learned Friend the Home Secretary and his Ministers are working on a solution based on the lines which were originally set out by the royal commission and highlighted by it, which I hope will be somewhat toughened up.

Sensible criteria of relevance should be applied. I do not believe, however, that they would prevent further examples of the sort that I have given. If a test of relevance is to be applied by the same judges who have shown no regard for the public interest in the cases to which I have referred, and who have been willing to allow unreasonable demands of disclosure, I do not believe that criteria of relevance would be helpful.

Let us go back into history to look for another solution. Parliament had some say in these matters in the Police and Criminal Evidence Act 1984. Section 78 made it possible, or rather, much easier, for courts to refuse to admit evidence where it had been improperly obtained. Michael Zander, in his book on the 1984 Act—he is hardly an arch Conservative authority—concedes that before PACE became law, it was rare for courts to exclude evidence, other than confessional evidence, that had been improperly obtained.

Section 78 did not in itself cause the problem. For five or six years the system worked perfectly well. The problem has arisen because of the willingness of the courts during the past four or five years to allow the defence to claim almost anything in the way of disclosure.

In particular, the courts have allowed the defence to use section 78 to reintroduce the agent provocateur defence through the back door. There was a clear ruling as recently as 1988 in the House of Lords in Regina v. Sang that there could be no agent provocateur defence in English law. In the past four or five years, however, the courts have allowed the defence to argue not that agent provocateur is a defence against the charge but that it is a ground under section 78 for having evidence excluded. Parliament never intended that, I am sure, and the courts did not interpret the section in that way for the first four or five years. The result is the litany of cases that I have quoted.

What shall we do about it? My right hon. and learned Friend the Home Secretary and his ministerial team are right to say that we must swing the balance back in favour of the public interest and of the victim and away from the accused. I do not think that there is any area in which the public have greater grounds for their loss of confidence in the courts than the one to which I am drawing attention. We see good evidence against hardened criminals thrown away. As a result, it is never presented to the jury.

When my hon. Friend the Minister alluded to these matters recently in a courageous speech, he was attacked by the association that represents London solicitors who are involved with criminal cases. Hell has no fury like a vested interest masquerading as a principle. We spent yesterday discussing sleaze in Parliament, and it is rather appropriate that today we are discussing it among lawyers. More important than the sleaze among lawyers is the craven attitude of some of our judges. They could not do it—

Madam Deputy Speaker (Dame Janet Fookes)

Order. I must caution the hon. Member in his criticism of judges. It is usual only to criticise judges, especially if it is by name, by means of a substantive motion. I know that the hon. Member is speaking in fairly general terms but I felt that a little warning might be appropriate.

Mr. Brazier

I understand entirely, Madam Deputy Speaker.

I suggest to my hon. Friend the Minister that we shall not solve the problem if discretion is left in the hands of judges, however many new criteria we try to introduce from Parliament. It is a constitutional issue of the balance between how much Parliament should lay down and how much should be left to the judge on the spot. Sadly, the examples that I have given, which were drawn out of a much larger pool, show that we have to leave less to the judge on the spot.

I have two specific proposals beyond those that emanate from the royal commission, which are fairly uncontentious. The first is that we should revisit section 78 of the Police and Criminal Evidence Act 1984 and make it abundantly clear, by a small amendment to it, that the agent provocateur argument, a defence that has never been known in English law, is never to be used as a criterion for withholding evidence.

My second proposal is that we go beyond insisting on a criterion of relevance being applied to evidence, and say that, in one narrow category of cases, the burden of proof in criminal trials should be reversed. Where the prosecution is arguing that the name of an informant, or equivalent party—perhaps people who allowed their house to be used for a surveillance operation—should be protected, and has been protected by a public immunity certificate from the Attorney-General, in that one narrow case, the burden should be reversed and the defence should be required to show not merely relevance but a concrete case, which the judge is fully satisfied requires the name of that informant, to make it hold water. I would go further and suggest that both the prosecution and the defence should have an appeal under certain circumstances on the judge's ruling, preferably to a lay body, such as that which examines miscarriages of justice.

I do not believe that either of those proposals would lead to miscarriages of justice. I know of no case that has ever been argued in our criminal courts in which the inability of the defence to argue agent provocateur was critical. What is needed is to swing the balance back towards the public interest and the interests of the victims.

An opinion poll as far back as 1991, in Reader's Digest, showed that, even then, public confidence in our courts had dropped below 50 per cent. Public confidence in the police, incidentally, was shown to be almost 75 per cent. I know from my constituents how concerned they are, not about so-called miscarriages of justice—the very rare cases where allegedly innocent people have been convicted—but about the inability of the courts to deliver convictions.

Only one person in 30 today committing a criminal offence is committed. Although there is a nominally high conviction rate, the proportion of crimes committed in which the case is sufficiently strong to match the ever-increasing standards of proof that the courts are demanding has fallen steadily over the past few years.

I end with two comments from two newspapers that represent very different parts of the political spectrum. The Daily Telegraph commented on this subject, and said: today the law too often appears to give the accused whose lawyers know the ropes excessive advantage. But this may have more to do with the way the judge interprets the law than with the law itself. Sadly, The Daily Telegraph is right, but if the judges are interpreting the law in this case, it is we, not they, who are answerable to the public and who have to change the law to reduce their discretion.

The other quote is from The Guardian. In some ways, it strikes even more widely. It says:

at least the police have been open about their earlier misconduct. If only the lawyers would be so honest. It is not a perfect world, and we have to legislate for an imperfect world. This is too important to leave to judges alone. Parliament must act to prevent our criminal courts from sliding into allowing a self-inflicted collapse in public confidence. That is not the route to the protection of the rights of the accused or of the victim. It is the route to rule by the lynch mob, as people lose confidence in the courts and start to take the law into their own hands. Parliament must act.

2.49 pm
Mr. Bill Walker (Tayside, North)


Madam Deputy Speaker

Order. Has the hon. Gentleman the consent of both the Minister and the hon. Member for Canterbury (Mr. Brazier)?

Mr. Brazier

Yes, indeed. I apologise for not making that clear.

Mr. Walker

I congratulate my hon. Friend the Member for Canterbury (Mr. Brazier) on securing the opportunity to raise an important matter. I am concerned about the way in which evidence is obtained. The important thing is for criminals, whoever or whatever they are, to be convicted when brought before our courts.

Yesterday, interestingly, the House in its wisdom accepted the evidence. Notwithstanding the fact that that evidence had been obtained by an agent provocateur and definitely constituted entrapment, the House considered that it should be noted and heard. I do not object to that. My position is clear: I believe that the House heard and judged the evidence, and that that was the right procedure. That is what should happen in our courts.

2.50 pm
The Minister of State, Home Office (Mr. David Maclean)

The issue of disclosure in criminal proceedings is important and sensitive, and I congratulate my hon. Friend the Member for Canterbury (Mr. Brazier) on securing the debate. With his usual clarity, he has exposed some of the current problems; I assure him that the Government share his concern.

Let the House be in no doubt that the Government believe that significant reforms to the current disclosure requirements are needed. At present, the system places too heavy a burden on the police and the prosecution, without necessarily serving the best interests of justice. The result can be that the prosecution must disclose large quantities of material that is not relevant to the issues in the trial.

The problem is not only the volume of the material. The current system can also make it difficult to protect sensitive material, and sometimes requires the prosecution to make a hard choice between disclosing such material and abandoning the case. That cannot be right, and it certainly is not just. It is abundantly clear that what is needed is a new system that meets those concerns, while at the same time meeting the interests of justice. However, it is one thing to state that general proposition and to agree whole-heartedly with every word uttered by my hon. Friend, and quite another to produce an alternative, acceptable scheme that my hon. Friend might find "judicial-proof".

I propose to say a little about what an alternative scheme might be like, but first I shall consider in rather more detail some of the factors associated with the current system that give rise to difficulties. Although pressing, the problems of disclosure are relatively recent. In the 1980s, prosecution disclosure was based on the 1981 guidelines issued by the Attorney-General, which operated quite well. The guidelines, which do not have the force of law, went beyond the minimum requirements laid down in case law at that time.

The prosecution had to disclose to the defence all unused material that had some bearing on the offence and the circumstances of the case. The guidelines provided a discretion not to disclose unused material in a range of circumstances: in particular, they allowed unused material that was sensitive to be withheld. Such material might deal with matters of national security, for instance, or might reveal the identity of an informant, putting that informant and his or her family in danger. In the past few years, however, a series of court rulings has effectively overtaken the 1981 guidelines by progressively extending the prosecution's duty of disclosure.

My hon. Friend alluded to the courage of some members of the judiciary in deciding such cases. I could not possibly comment, but I think that my hon. Friend's remarks are well taken by those of us who understand exactly what he meant.

As the law now stands, the prosecution must disclose to the defence any material that might be relevant to an issue in the trial, or that might provide a lead to any relevant evidence. Some sensitive material may be protected by public interest immunity, but if the material is considered relevant to an issue in the trial, or as possibly providing a lead to any relevant evidence, and is shown to the court, the interests of justice in favour of disclosure will tend to outweigh the public interest in non-disclosure.

The practical effect of the current requirements has been to place heavy burdens on the investigating and prosecuting authorities. As the Royal Commission on Criminal Justice pointed out, the defence can require the police and prosecution to comb through masses of material, tons of it, in the hope either of causing delay or of chancing upon something, often irrelevant, that will induce the prosecution to drop the case rather than have to disclose the material concerned. The defence may do so far beyond the stage at which it could reasonably be claimed that the information was likely to cast doubt upon the prosecution case.

Police officers from one regional crime squad provided an example of how burdensome the current requirements can be. Defence counsel in the case asked to see 175 surveillance logs and a large quantity of contemporaneous trigger notes of covert audio tapes. This took two police officers many hours to complete. Defence counsel did not agree with the order in which the trigger notes were arranged and asked for them to be paginated and recopied. When the paginated copies had been prepared, defence counsel did not even bother to examine them.

Later on, at a pre-trial review, the judge granted a defence request for copies of 209 audio tapes. Although four of the six defendants in the case had instructed the same solicitor, the defence demanded, and was granted, one complete set of tapes for each defendant. That left the police with the burden of producing and labelling 1,254 audio tapes within a deadline of 21 days. That stinks.

It is a feature of the current disclosure requirements that it is very difficult to protect sensitive material. Because the defence is entitled to know about all the unused material in the possession of the prosecution, it may request the disclosure of the identity of an informant or police undercover officer, or the location of surveillance equipment. The prosecution may apply to the court for a ruling that the material should not be disclosed, but an adverse ruling requires it to make a hard choice between complying with the ruling, which may place the informant's life in danger, or abandoning the prosecution to protect the informant, however strong the other evidence against the defendant may be.

I shall not trouble the House by citing numerous examples of how the defence has used such behaviour, but it is not a mere intellectual argument. The police can quote case after case in which some honest, upright, law-abiding citizen has given the police permission to mount a video camera in the sitting room to watch drug dealing taking place across the street. The defence will apply to find out the name of the person who allowed her sitting room to be used. If it cannot get that, it will apply for a copy of the tape, and it can back-track to locate where the camera was positioned. It is a sad fact that in some cases, within hours or days of the defence being supplied with such material, groups of thugs have visited the honest, upright citizen who provided her sitting room for observation. That is the core of the problem that the Government want to address.

Mr. Brazier

For the benefit of us all, during his splendid speech could my hon. Friend remind us and put on record that there could have been no such occurrences without the explicit and detailed consent in each case of the trial judge concerned?

Mr. Maclean

Of course the present system allows the defence to seek such permission from the judge. In those cases, judges have decided that the information was relevant. That is their judgment, but it would certainly not be the judgment of many others. That is the problem that we must address. We must try to draw up new rules that will more tightly circumscribe the areas of relevance.

I suspect that, where the identity of the informant is relevant to the prosecution or defence case, it might be possible to provide safeguards for his anonymity. When an informant's identity is not relevant—where, for instance, a person has been caught red-handed in the commission of a crime—the Government believe that it is quite wrong that that innocent informant should have his identity revealed. By informants, we do not necessarily mean members of the criminal classes who have turned. We mean the ordinary citizen who has looked out of his window, seen something suspicious and dialled 999. The police have come and grabbed someone red-handed, but the person who has tipped off the police may now be liable to have his name given to the defence when it is not relevant at all to the evidence. Unfortunately, in too many cases those people are visited by undesirable elements.

Such behaviour—where the defence check through all of the prosecution material—is called a "fishing expedition". If it is fishing, it seems to me that there are too many sleazy lawyers fishing in the gutter. It is that which we wish to stop.

The prosecution duty of disclosure is now very wide. In contrast, the defence is not required, except in a few specified circumstances—alibi, expert opinion evidence, and in cases of serious or complex fraud—to disclose anything about its case in advance of the trial.

The limited requirements on the defence to disclose its case in advance of the trial conspire to place heavy burdens on the investigating and prosecuting authorities. For example, if a person is charged with assault, and there is no information about the defence case, the investigator must proceed on the basis that any one of a number of defences might be raised, including mistaken identification, lack of intent, self-defence or duress. Everything which might be relevant to one of those defences is passed to the defence. The defence trawls through the material to identify which of the defences stands the best chance, in the light of the evidence, of getting their client off.

Under the current arrangements for defence disclosure, it is clearly not possible to narrow the issues in dispute before the trial starts and thereby to set limits to what the prosecution must disclose. The Government endorse the principle that it is the duty of the prosecution to prove the guilt of the defendant beyond reasonable doubt, but that should not mean providing the basis for speculative requests by the defendant to construct the most plausible defence.

There is currently little or no incentive for the defendant to contribute to the process of narrowing the issues in "dispute, or to disclose a genuine defence in advance of the trial. The system makes it all too easy for the defence to obstruct the identification of the truth and ambush the prosecution by running a plausible but fictitious defence at a late stage.

A number of senior police officers have expressed deep concern about the lack of requirement on the defence to disclose its case. I have great sympathy with their view that presentation of a defence at the last minute is not conducive to the efficient conduct of the trial. It is not in the interests of justice, and courts are supposed to get at the truth.

The Royal Commission on criminal justice recommended a system of mandatory defence disclosure before the trial to address the problem, although its scheme envisaged little more than the defence ticking a box to indicate in very general terms where it disputed the prosecution case. This might not, in fact, go far enough to be of any real assistance to the prosecution.

I want to say a few words about the way forward in our view. The royal commission recommended that the general framework for disclosure should be laid down in primary legislation, with detailed provisions governed by appropriate subordinate legislation or codes of practice. Its scheme provides a basis on which we can build. I agree that a statutory scheme is needed. I also agree with the suggestion for a staged approach to disclosure, whereby the prosecution would disclose certain material at the first stage, the defence would then disclose something of its own case, and additional prosecution disclosure would be related to what the defence had disclosed.

However, the royal commission's formula for first-stage prosecution disclosure lacks precision, and is very wide-ranging. The prosecution would be required to supply to the defence copies of all material relevant to the offence or to the offender or to the surrounding circumstances of the case, whether or not the prosecution intended to rely on that material. At the second stage, the defence would need to do no more than indicate the general nature of its case.

The Government believe that a more closely defined approach is needed, within the general framework suggested by the royal commission. Any solution to the problems surrounding disclosure will need to satisfy a number of conditions. First, it must reduce the burden of the current requirements on the investigating and prosecuting authorities in relation to the volume of material which must be disclosed.

Secondly, it should reduce the scope for opportunistic requests by the defence which are designed not to elicit material supporting the defendant's version of events but solely to discover what may be a profitable line of argument to try on an unsuspecting jury.

Thirdly, it should limit the scope for adverse rulings on sensitive material, at least where the material does not undermine the prosecution case which causes the abandonment of important prosecutions.

It should also—

The motion having been made after half-past Two o'clock, and the debate having continued for half an hour, MADAM DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned accordingly at four minutes past Three o'clock.