HL Deb 10 March 1977 vol 380 cc1176-84

3.50 p.m.

Further considered on Report.

Lord WIGODER moved Amendment No. 36:

After Clause 26 insert the following new clause:

Safeguard for defendants in summary trials

.—(1) The Magistrates' courts rule committee may make regulations for the purpose of providing, in the circumstances and for the classes of case specified, and subject to such exceptions as the regulations may specify, for information to be given by the prosecutor to the defendant, or his legal representative, in advance of the trial, as to the evidence which is to be given by the prosecution.

(2) Without prejudice to the foregoing, the said committee shall, within a period of two years from the coming into force of this Act, make such regulations in relation to offences triable either way where such information is requested by or on behalf of the defendant.

The noble Lord said: My Lords, it would no doubt be convenient to your Lordships and to the noble Lord, Lord Harris of Greenwich, to consider Amendment No. 38 at the same time as Amendment No. 36. Of all the clauses proposed in this Bill, and all the Amendments suggested, I put forward this Amendment as the one which will have the most far-reaching and beneficial effect on our whole system of criminal justice. Its object is very simple. In subsection (1) of the proposed new clause power is given to the magistrates' courts rule committee to make rules to ensure that defendants who are being tried summarily shall receive, before the trial, information as to the nature of the prosecution case. Subsection (2) goes further and ensures that a positive step in that direction is taken within the next two years, at least in relation to the more serious types of criminal offences that are to be tried summarily.

My Lords, subsection (1) is worded in a manner which I hope your Lordships will regard as both elegant and economical. I claim no credit whatever for that, because I have taken the wording entirely from the speech made by the noble Lord, Lord Harris of Greenwich, on 1st February as reported in column 747 of Hansard. It may well be that the noble Lord, Lord Harris, will indicate that the principle laid down in subsection (1) is clearly acceptable to the Government, because it is substantially the same principle as that which is now set out in Amendment No. 38 in the name of the noble Lord, Lord Harris, although at somewhat greater length.

Subsection (2) of the proposed new clause I regard as an integral part of the Amendment, not one that can be severed, and indeed as the more important part of the Amendment, because it will ensure that within a reasonable time firm and decisive steps are taken and the matter is not left to a general and indefinite discretion. Your Lordships will know that the present system involves, in trials by magistrates' courts, that a defendant faces his trial with no prior knowledge of the case against him. The results of that are unjust, they are expensive and they are undignified. They are unjust because it is quite impossible to defend a man adequately, properly, if one has no advance information of the details of the case against him. It is indeed as impossible as noble Lords on the Government Front Bench would find it if they were unable to say, in answer to a supplementary question, "That question does not arise out of the original Question, and I will write to the noble Lord in due course". Unless one has detailed information with regard to the case that one has to meet it is wholly impracticable to prepare a defence properly. It is therefore unjust.

It is also extremely expensive. It is extremely expensive for various reasons. In the first place, defendants and their legal advisers who do not know the nature of the case against them are very often tempted to contest the case at the magistrates' court, whereas if the statements of the witnesses were available they would at once plead guilty and that would be the end of the matter. Secondly, it is expensive because very often indeed defendants are advised by their legal advisers to go for trial to the Crown Court, despite the expense and despite very often the inconvenience, simply because by going to trial one obtains the advantage of seeing the prosecution statements, knowing precisely what the case is, and, therefore, being able to meet it properly.

Thirdly, the present system is expensive because inevitably from time to lime, in a contested summary case, the defence have to apply for an adjournment in order to meet some point that had not been anticipated. Fourthly, it is expensive because, as my noble friend Lord Foot pointed out at an earlier stage, legal representatives at a magistrates' court who do not know the full nature of the case sometimes have to embark on extremely long and tedious cross-examinations, thinking that in some way they may be laying the ground for cross-examining some subsequent witness who it may well turn out does not exist. Therefore, there is again a great deal of unnecessary expense in all those directions. Apart from being unjust and expensive, it is obviously extremely undignified, when conducting a defence in front of magistrates, from time to time to have to indulge in hasty mutterings and whisperings to one's client, or find pieces of paper being handed over frantically as some particular piece of evidence that was not anticipated emerges.

My Lords, for all these reasons it is, therefore, clear, is it not, that in order that justice can properly be done at magistrates' courts the present position must be brought to an end. It is, frankly, indefensible that a defendant who is charged with a serious criminal offence and goes for trial is provided with statements, knows the case he has to meet; that if he is a motorist who is summoned for speeding he gets a notice of the facts supplied by the police and knows the case he has to meet, but that if he is somewhere between the two and defending himself on a moderately serious criminal offence that may have very serious consequences, there is at the moment no procedure at all by which he can obtain access to the nature of the prosecution's case.

In those circumstances, subsection (1) has been drafted, in this proposed new clause, to provide that the magistrates' courts rule committee can make regulations as a discretionary power. It gives them power for particular classes of case, if they wish, and with such exceptions as they may specify, to rule on the provision of information in advance to the defendant or his legal representative. That is a wholly discretionary power given to the committee in subsection (1).

I am very conscious of the fact that such a wholly discretionary power may never be exercised, and, therefore, subsection (2) puts the teeth into the Amendment. Subsection (2) provides that in a limited class of case—that is, the more serious offences that are triable summarily; offences that are under this Bill triable either way—where there is a summary trial of an offence triable either way, and provided the defendant makes an application for copies of statements of witnesses or information relating to the case, such orders shall be made by the magistrates' courts rule committee within a period of the next two years. It is a mandatory power.

My Lords, perhaps I should remind your Lordships that the committee is one that is chaired by the noble and learned Lord the Lord Chancellor, under the provisions of the 1949 Justice of the Peace Act, and he therefore will be able to safeguard the interests of the Government of the day on any particular aspect, as to precisely when it is expedient that within the next two years such orders should be made.

The Government's objection to subsection (2) is one which has been made repeatedly by the noble Lord, Lord Harris of Greenwich. It is simply that although there is no objection in principle to this power it is estimated that it would cost some £4 million per year to introduce it. Therefore it is said that it is quite out of the question now, and, I have no doubt it may be said by the noble Lord, perhaps impracticable during the next two years. Might I say at once from these Benches that we would all accept that any immediate substantial increase in public expenditure for a non-productive purpose, however socially desirable it may be, is not practicable, but having looked at this matter I cannot accept the £4 million figure or the reasoning behind it. I could only support it on the basis that it was proposed that the police, in order to copy statements, were going to have to queue up and pay for the facilities to use the photocopier at Victoria Station.

The figure is wrong, and I venture to say why it is wrong: first, because it makes no allowance—and the noble Lord, Lord Harris, has admitted this—for the fact that cases will be pleas instead of fights; it is not easy to estimate how many, but clearly an allowance has to be made. Secondly, it makes no allowance for the fact that instead of going for trial some cases will be dealt with summarily, and that again will mean a substantial saving. In the third case I suggest the figure is wrong because the costing exercise is wholly erroneous. The details of it have been provided.

The noble and learned Lord, Lord Gardiner, and I raised this matter at an earlier stage and the noble Lord, Lord Harris, sent to the noble and learned Lord a letter setting out how the figure was arrived at. The noble Lord, Lord Harris, is so determined to conquer inflation that he found himself unable to afford a photocopy of that letter for me, but I am obliged to the noble and learned Lord for providing that at his own expense. I venture to suggest that the letter is wholly erroneous in its conclusions. In the first place, it points out that on the basis of the 1975 criminal statistics there will be something like 408,000 cases triable either way which may be dealt with summarily as a result of this Bill. It then goes on to make the assumption that in half of those cases—that is, 204,000 of them—we would have to assume that there would be a request. That is a ludicrous assumption. The fact is that, on existing figures, the pleas of guilty alone will amount to something over 70 per cent, and it may be over 80 per cent. It is quite inconceivable that there will be constant requests for copies of prosecution statements where one's client is a shoplifter and has decided to plead guilty. There may be a word to the prosecution when the defence arrive and that is all. Therefore, the number of cases to which these provisions will apply, which will be triable summarily and contested, is very small.

I suggest that the costing is even more erroneous when the letter goes on to say a little later that one-third of the statements thus supplied to the defence would have to be edited in order to remove information which is irrelevant or defamatory or prejudicial to third parties or not essential to the case and so forth. It is suggested that the late Lord Justice James in his report accepted that that was a valid objection. I think that is a misreading of the report, and if the noble Lord looks at it again I think he will find that is so. In the course of that report the late Lord Justice James accepted that there was a valid ground for objecting to disclosing a statement if it contained material prejudicial to other people and might be a breach of confidentiality and which it might not be in the public interest to disclose. But the late Lord Justice James and his Committee never suggested that it was a valid objection that such statements might also include irrelevant material. So they might, but this is a misunderstanding of the position.

It is not being suggested that the statements which are to be supplied by the prosecution before a summary trial are to be used in evidence in any way, and if, as many of them will, they contain what the witness told his grandmother's daily help when he got home that night, and what the daily help said by way of reply, it does not matter in the least if that information is photostated and supplied to the defence. Over and over again when one conducts a case in the Crown Court, where there has been a committal under Section I, one finds masses of irrelevant hearsay evidence and this is simply excluded when the trial takes place. No harm is done.

To suggest, as this document does, that one-third of statements taken by police contain information so prejudicial to the public interest that editing would be necessary, is a gross exaggeration. I use the words advisedly. I have made inquiries from members of the Bar who spend day after day all the year round dealing with thousands of witness statements in the form in which they are taken by the police from the witnesses. I have asked them independently for their estimates as to what proportion of such statements would require editing. The figures have varied from 1 per cent, to 10 per cent.; nobody has exceeded that figure. The suggested figure here—that is, that one-third of the statements would require editing, with administrative staff and so forth necessary for support—is wholly unrealistic and entirely excessive.

Having said that, one is bound to ask—and I am sorry to embark on a somewhat controversial field—why the Home Office are putting forward in good faith (I accept that it is in good faith) figures which are entirely misleading? I believe that the answer is not far to seek: it is that if, as a member of the Bar, one goes round the country appearing in magistrates' courts—again I have made a number of inquiries about this—in those authorities where prosecutions are conducted by prosecuting solicitors or solicitors on the staff of a local authority, or those areas in which prosecutions are conducted by police officers, a request by the defence such as, "Please could I look at the statement? Please would you tell me the nature of the evidence?" is often met in many cases with a blank refusal. This does not happen in all areas but it happens in many areas for the simple reason that there are some prosecuting solicitors and police officers who regard it as important to maintain the cheap, unjust, tactical advantage which the present system gives them. I do not believe there is any doubt about this.

In that situation those authorities and police officers who have been consulted by the Home Office on this costing exercise can hardly be expected to put that forward as grounds for their objection to this Amendment. They have to put forward a wholly different objection; namely, that there will be insuperable financial and administrative difficulties. I have no doubt that that is what accounts for the fact that the costings that have been given are wholly excessive.

Baroness PHILLIPS

My Lords, the noble Lord is making a rather serious statement which I should like to understand quite clearly. Is the noble Lord saying that in some cases defendants may not have had the opportunity of seeing their statements, which they have signed, that are put before us in the courts?

Lord WIGODER

No, my Lords, I am sorry if I have not made myself clear and I apologise to the noble Baroness. The defendant is, of course, entitled to a copy of his own written statement. It is statements made by prosecution witnesses which are not generally available on application by the defence. There are areas where they are available. If on a counsel-to-counsel basis, or if there are particularly independent solicitors who conduct prosecutions, then there are areas where one can approach them before a summary trial to ask, and they will of course allow one to look at the statements, take copies if necessary and prepare the case thoroughly in advance. However, unhappily, there are some areas where there is a reluctance to do that, where counsel believe that they are entitled to stand on their rights and do so—they are very anxious to preserve their tactical advantage in that way.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I believe that there has been a misunderstanding between the noble Lord and the noble Baroness. I suspect that the noble Baroness, Lady Phillips, was thinking of committal proceedings under Section 1, whereas the noble Lord is talking about summary proceedings.

Lord WIGODER

My Lords, I am grateful to the learned and noble Lord, Lord Hailsham of Saint Marylebone, for rectifying the misunderstanding. It is because there is this difficulty in many parts of the country in obtaining advance information about the nature of the prosecution's case before a summary trial that it is essential that something in the terms of subsection (2) should be included in the Bill. It will not be sufficient to leave the matter as a discretionary power at large without any firm proposal that at some fixed date provisions of this sort should be introduced.

I shall refer only for a moment to Amendment No. 38, which has been tabled by the noble Lord, Lord Harris of Greenwich. It provides, in very similar terms to subsection (1) but rather more lengthily, a discretionary power in the Magistrates' courts rule committee. My objections to Amendment No. 38 are two-fold. First, it is limited in the fifth line only and for ever to offences triable either way. I hope that we shall move to a stage, gradually but inevitably, where for all offences—not simply offences triable either way—information can properly be forthcoming to enable a person to obtain justice in the way which is desirable. Secondly, I suggest that Amendment No. 38 is quite inadequate because the discretionary power that is suggested by the Government is left entirely indefinite, There is no time limit of any kind; there is no indication of any kind that anything may ever be introduced. I hope that we shall not part with the Bill without ensuring that there is a firm requirement by Statute that within a reasonable time, in a modest way, a start is made upon this process.

The reform that I suggest in my Amendment is one that was put forward by the James Committee. It has been supported by the Criminal Bar Association, The Law Society, the Magistrates' Association, by Justice and by the National Council for Civil Liberties, among many other bodies. Notwithstanding the financial difficulties, it is essential that we move forward within the foreseeable future to provide information in this way.