Criminal Procedure and Investigations Bill [H.L.]

HL Deb 18 December 1995 vol 567 cc1432-67

4.42 p.m.

House again in Committee on Clause 1.

Lord McIntosh of Haringey moved Amendment No. 2: Page 2, line 1, at end insert ("or not").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 101. This is a much more simple amendment and one which should cause the Committee and, I hope, the Government, no difficulty. I believe that it is generally recognised that the role of the police, or any other body involved in an investigation, is not simply to collect material which would indicate the guilt of an accused, but to collect material which will enable the court to decide whether the accused is guilty or not. That should be the basis on which the police investigation is carried out and it should be the wording in the Bill. Yet, curiously, Clause 1(4) states, For the purposes of this section, a criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained—

1. (a) whether a person should be charged with an offence, or
2. (b) whether a person charged with an offence is guilty of it".

Surely, in reality it should be whether a person charged with an offence is guilty of it "or not". Before and after the decision is made to charge somebody, it is still the responsibility of the police or the investigators to be as objective as possible in the way in which evidence is collected. I am very well aware, not only as a non-lawyer, but as a market researcher, that one gets more accurate answers to a question which asks, "Do you think that this should happen or not?" rather than asking a question which is implicitly one-sided; namely, "Do you think that X should happen?". Surely the same applies to police investigations. The alternative is there and it should be included. I beg to move.

Lord Campbell of Alloway

Surely this amendment is unnecessary. Clause 1(4) states, with a view to it being ascertained". If one tries to ascertain something, then one is trying to ascertain whether a person is guilty or not. I wish to give an explanation to the Committee. I supported the Government on the previous amendment although I had considerable misgivings. I realised that if I did not I would break wide open the structure of Part I of the Bill. My noble friend the Minister has done her very best to provide us with a mass of material to follow the principles of each amendment satisfactorily, but I have found that very difficult to do because of the state of the material which we have.

Baroness Blatch

I am grateful for the intervention from my noble friend. He is right in that I believe that we can allay the concerns of the noble Lord. The process of considering whether a person is guilty of an offence must also include considering whether he is not guilty. In fact, the key word in Clause 1(4)(a) and (b) is "whether" and that is the first word in each line. It would be a different matter if the Bill defined a criminal investigation in terms of ascertaining that a person was guilty of an offence rather than whether he was guilty, but it does not. Therefore, these amendments are unnecessary.

Lord Rodgers of Quarry Bank

I believe that the arguments of the noble Lord, Lord McIntosh, are important and the burden of his message clear. I hope that the Committee will endorse it. Can the Minister say whether the form of words on the face of the Bill is a convention in parliamentary drafting? If it is, then I shall certainly not want to press the argument further, but if it is a departure from convention in comparable circumstances, then we need a further explanation.

Baroness Blatch

I cannot give an absolute answer to that. However, if one asks whether a person is guilty of an offence, then in asking whether they are guilty one is implicitly asking whether they are not guilty of it. I have stood here many times answering the point. I am reminded that this House is not always impressed with the argument that because something has always been done in a certain manner, that it should always be done like that. The important factor is whether the wording here reflects what we want it to reflect; namely, that it is subsumed in that a person may be guilty or not guilty.

Lord McIntosh of Haringey

Perhaps I may refer first to the words of the noble Lord, Lord Campbell of Alloway. He is of course fully entitled to take whatever view he wishes about the previous amendment. However, I do not believe that he is right to say that Amendment No. l would have broken open the whole structure of Clause 1. Its structure is complicated and on it depends the introduction of a number of other clauses, and Clauses 3 to 5 in particular. We took care to make sure that the structure of Part I of the Bill, which is more important, survived the amendment which we thought was necessary. I do not take too kindly to the implication that we have not thought about our series of amendments.

My response to the Minister as regards Amendment No. 2 and the subsequent amendment, can only be that she does not really recognise the English language "as she is spoke". We do say, "Whether or not" and "Guilty or not". We do that perhaps with an element of repetition, but in order to make clear that our minds are open as to the outcome of any investigation. It is simply not good enough to say that "whether" implies "whether or not" when the noble Baroness knows as well as I do that the English language commonly consists of putting the two alternatives. It is particularly important that the two alternatives should be put into a description of police investigations because it is particularly important that Parliament should insist that police investigations are objective and that they seek the truth rather than that they seek a particular outcome which is convenient to the police and the prosecution.

I note that the Minister was not able to tell the noble Lord, Lord Rodgers, that the omission of the words "or not" is common in legislation. I do not feel that that issue has been adequately answered. However, as it may be considered a higher level drafting issue, it is not one on which I wish to seek the opinion of the Committee. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 3: Page 2, line 4, leave out ("made by statutory instrument").

The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 3, I speak also to Amendments Nos. 13, 27, 30, 35, 50, 53, 57, 98, 104, 126, 129, 131 to 134, 141, 151, 156 and 159.

All of those amendments are designed to tidy up the Bill by removing unnecessary duplication in the way in which the Bill provides for orders or regulations to be made. They achieve this by adding one new clause after Clause 46 and removing or re-drafting other provisions in consequence.

First, in Clauses 1, 18, 21, 32 to 38, 44 and 45, the Bill refers to a day appointed by the Secretary of State by order made by statutory instrument. The amendments remove the words "made by statutory instrument" from all these clauses. They reappear in subsection (2) of the new clause after Clause 46, which provides that orders made under the Bill are to be made by statutory instrument.

Secondly, Clauses 3, 5, 6 and 7 each require the prosecutor or the accused to comply with the requirements of the clause before the end of a certain period. The period is described as consisting of a number of days to be prescribed, starting on the relevant day. The relevant day is different in each case: in Clause 3 it is where the accused pleads not guilty at a summary trial or where proceedings are transferred to the Crown Court. In Clauses 5 and 6 the period begins on the day when the prosecutor complies with Clauses 3. In Clause 7 the period begins on the day when the accused complies with Clauses 5 or 6. The number of days is to be specified in an order made by statutory instrument subject to the negative resolution procedure. The amendments to these clauses provide that the prosecutor or the accused must act within a period beginning and ending with such days as are prescribed by the Secretary of State by regulations. Subsection (3) of the new clause after Clause 46 provides that the regulations are to be made by statutory instrument subject to the negative resolution procedure. I should explain that we now take the view that the most appropriate means of prescribing the period is by regulations rather than by order, just as, for example, custody time limits are specified in regulations, and the amendments provide accordingly.

Clause 10 currently refers to the specified period described in Clauses 5 and 6. The three amendments to Clause 10 are consequential on the amendments to Clauses 5 and 6 which I have just described.

Finally, subsection (1) of the new clause after Clause 46 provides that the power to make appointed day orders, and regulations under Clauses 3, 5, 6 and 7, may be exercised differently in relation to different cases or classes of case. In particular, the power may be exercised differently in relation to different areas, enabling the Secretary of State to bring Part III of the Bill into force on different days for different places, that is, for different Crown Court centres. The amendment to Clause 21 removes subsection (2) in consequence. I beg to move.

Lord McIntosh of Haringey

The whole issue of order-making powers and regulation-making powers exercised the Delegated Powers Scrutiny Committee, which received a lengthy memorandum from the Home Office on the subject. The very fact that we are now considering 19 amendments—and therefore 19 different provisions in the Bill—is evidence that this is one of those pieces of legislation which relies heavily on delegated powers. However, the Delegated Powers Scrutiny Committee concluded that since most of those powers are already part of delegated legislation (because they refer to the operation of the courts) this is an appropriate use of order and regulation-making powers and continues the same procedures.

As the Minister said, Amendment No. 159 is the important amendment. It introduces a new clause. The Committee should note that that new clause states that it is the power to make regulations rather than orders which is exercisable by statutory instrument subject to annulment—in other words, by the negative procedure. One never likes a Bill which contains so much delegated legislation, but I think that we can accept that in this case what is now proposed is a tidying up and that there is no particular threat in the new clause which it is proposed to insert after Clause 46.

Lord Rodgers of Quarry Bank

I would not dissent from the conclusion of the noble Lord, Lord McIntosh, but in view of the exchanges that took place before the committal of the Bill, perhaps I might say that I too was immensely grateful for the courtesy and helpfulness of the Minister in making papers available, including the comparison, for which I asked on Second Reading, between the Royal Commission report, the disclosure consultation document arid the Bill. That must have required an immense amount of work and the whole Committee should be grateful for that.

However, the fact that It and others take that view of the Minister's contribution does not absolve us from still regretting that the Bill was drafted in the form that it was. As the Minister said—and as she stated in her initial letter in which she set out the changes that the Government are making—the present Bill contains an unnecessary duplication and, to follow both the Minister's words and those of the noble Lord, Lord McIntosh, a process of tidying up is taking place. I do not want to dissent from that, but I see no reason whatsoever why that tidying process should be necessary now. It would have been an easy drafting point to ensure that those separate provisions within the Bill were contained in a single clause. That is being done now, but it should have been done earlier.

Lord Campbell of Alloway

May I seek clarification on one aspect? I raised this point on Second Reading. Is the code of practice to be introduced by an order under subsection (2) by statutory instrument, but not be subject to any parliamentary scrutiny? Is that the position?

Baroness Blatch

Yes, it is.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

Clause 3 [Primary disclosure by prosecutor]:

Lord Airedale moved Amendment No. 4: Page 2, line 20, leave out ("prosecution material") and insert ("material in his possession").

The noble Lord said: We are invited to discuss Amendments Nos. 4 and 6 together. We now come to Clause 3, which deals with primary disclosure by the prosecutor. In paragraph (a) of Clause 3(1) we find the expression "prosecution material". To begin with, I do not regard that as the language of statute. Surely "material in the possession of the prosecutor" would be preferable. Furthermore, "prosecution material" leads one to suppose that you are talking about material which is in favour of the prosecution, but that clearly is not the case because paragraph (a) refers to, prosecution material which...might undermine the case for the prosecution".

That does not seem to make much sense.

In Amendment No. 6 I have tried to get rid of the expression about undermining the case for the prosecution. It is just a question of relevance: whether the material in the prosecutor's possession is relevant. He does not have to consider whether or not it undermines his case. He does not have to consider whether he thinks that it is useful material or material which is not worthy of much belief. If it is relevant, he has to disclose it. That is what the amendment does. It substitutes relevance for the untidy wording about undermining the prosecution's case.

On Second Reading, the noble Lord, Lord Renton, said: I welcome the Bill in substance but must say that, although the drafting seems to achieve its intended legal effects, it is a little spun out and laborious. I am quite sure that it could have been drafted more succinctly".—[Official Report, 27/11/95; col. 479.]

I hope that Amendments Nos. 4 and 6 take us a little way along the road that the noble Lord, Lord Renton, would like to see us go. I beg to move.

5 p.m.

Lord Campbell of Alloway

On Amendment No. 6, it is essential that the words, which in the prosecutor's opinion might undermine the case of the prosecution against the accused", remain. That is a safeguard and must surely be retained. As to Amendment No. 4, it is a question of grammar. I understand what is said.

Baroness Blatch

On the first amendment tabled by the noble Lord, Lord Airedale, I am not sure whether he intended it but it has the effect of narrowing the range of material to which the disclosure duty in Clause 3 applies. It restricts it to material in the possession of the prosecutor, thereby excluding any material in the possession of the police rather than the prosecutor but which the prosecutor has inspected. As Clause 3(2) makes clear, both kinds of material are intended to be subject to the disclosure test. As it stands, the amendment weakens the protection for the accused provided by the Bill.

The second amendment has significant implications for the disclosure scheme in the Bill. Clause 3 currently requires the prosecutor to disclose prosecution material which he thinks might undermine the prosecution case. The amendment would widen that test significantly to require the disclosure of material which the prosecutor thought might be relevant. This is very similar to the disclosure test operating under the current law.

I can understand why the noble Lord wants to amend the clause in that way. He believes that it would reduce the risk of a wrongful conviction if the accused had access to all relevant prosecution material rather than just material which might undermine the prosecution case. But I believe that the provisions in the Bill are themselves adequate to guard against a wrongful conviction. The disclosure tests we have provided focus attention on material which might undermine the prosecution case or which might reasonably assist the defence disclosed by the accused. The prosecutor must disclose all material falling within the tests, subject to considerations of public interest, or provide a written statement that there is no such material. At the time of primary prosecution disclosure he must give the accused a schedule listing all material which has been retained and which is not subject to public interest considerations. The police will have to certify to the prosecutor that they have complied with the requirements imposed on them under the code of practice.

What is more, I am afraid that the amendments proposed by the noble Lord have some significant drawbacks. These are the same as those applying to the current disclosure test. We explained in the consultation paper on disclosure which we issued earlier this year what those drawbacks were and why we intended to narrow the test for prosecution disclosure in the way we have done. I will summarise the reasons, because it is important to put them on the record.

First, a test of relevance includes everything which might possibly have a bearing on the case. But that is very different from whether it has a bearing on the defence which the accused actually relies upon in court. The effect of the current test is that the police often have to photocopy and deliver large volumes of material to the accused, much of it unnecessary in that it is completely irrelevant to the actual defence. Where it is unnecessary it is also inefficient. It imposes significantly higher burdens on the police than the test we propose, and diverts police resources away from their primary task of fighting crime.

Secondly, a test as wide-ranging as "relevance" does nothing to narrow the issues in dispute in the case. The test we propose contributes to that by focusing on material which the prosecutor thinks might undermine the prosecution case. In conjunction with defence disclosure, and secondary prosecution disclosure of material which might reasonably assist the defence, our proposals will ensure that cases are much better prepared for trial than at present.

Thirdly, a test of "relevance" is inconsistent with the rest of the disclosure scheme. If the prosecutor discloses everything which might be relevant, there is no point in requiring secondary prosecution disclosure of material which might reasonably assist the defence, because there will be nothing left to disclose. The accused will accordingly be deprived of the benefit of the prosecutor reconsidering undisclosed prosecution material in the light of defence disclosure to assess whether any particular items of material might reasonably assist the defence case.

For all of those reasons, I hope that the amendment will not be pressed. The noble Lord referred to "prosecution material", and said that it was not statutory language. "Prosecution material" is defined in Clause 3(2) in terms which incorporate the language in the amendments tabled by the noble Lord, Lord Airedale. It goes further and includes material that the prosecution has been allowed to inspect.

Lord Airedale

I must say that I have had a full and thorough answer from the Minister. That may be partly because I put down my amendments in good time. One does not cure an inelegant phrase by defining it somewhere else in the Bill. However that may be, this is not the first time that I will have disagreed with something said by the noble Lord, Lord Campbell of Alloway. Nevertheless, I must read what the Minister said. In the meantime, I beg leave to withdraw the amendment.

Baroness Blatch

Before the noble Lord sits down, perhaps I may put on record that I believe that the noble Lord said that it is no good defining the phrase in another part of the Bill. It is in fact defined in Clause 3(2) which states: For the purposes of this section prosecution material is material—

1. (a) which is in the prosecutor's possession, or
2. (b) which he has been allowed to inspect in pursuance of a code operative under Part II".

So the definition is included within the same clause.

Lord Airedale

I do not mind where the phrase is defined. Defining something does not make it an elegant expression. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 5: Page 2, line 21, leave out ("in the prosecutor's opinion").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 9, 10 and 43. With Clause 3(1)(a) we come to what are perhaps the most important few lines in the Bill. They are important, first, because they use the phrase: material which has not previously been disclosed".

Of course, what has been previously disclosed depends upon Part II and the code of practice, which goes only to confirm the view I expressed on Second Reading that Parts I and II of the Bill are back to front. In chronological and logical terms, and to make it easier to understand, we should be pursuing the process from the investigation through to conviction or acquittal and indeed afterwards.

Part I is spelt out in great detail but it is dependent on the code of practice, which is the substance of Part II. We must debate Part II having already debated Part I. That opinion is reinforced by the Minister's reminder that the definition of prosecution material is contained in Clause 3(2)(b), which states: which he has been allowed to inspect in pursuance of a code operative under Part II".

If we are to understand the meaning of that we should be dealing with a code operative under Part II before we deal with the statutory provisions contained in Part I. We have tabled a number of amendments to Clause 3(1)(a) which seek to clarify and strengthen the definition of what must be disclosed by the prosecutor at the primary disclosure stage.

Incidentally, I was most taken aback by what the Minister said in response to the noble Lord, Lord Airedale. She said that if the primary disclosure were to be too wide it would make it impossible to have an effective secondary disclosure. I do not see that at all. It seems to me that one has a primary disclosure which is as wide as is necessary to make the defence disclosure effective. There is no reason why there should be a subsequent secondary disclosure, except when other information has come to light as a result of the primary disclosure. That will still be the case. A three-stage process is not being pursued for the sake of doing so. If it can be cut down one cuts it down. One retains with the secondary disclosure procedure the opportunity for either the defence or the prosecution to make sure that the material which should be disclosed is in fact disclosed. I was not at all impressed by the argument that one must restrict primary disclosure for that purpose.

The particular issue with which we are concerned in these four amendments is the phrase which occurs four times, and which we seek to leave out four times, "in the prosecutor's opinion". It cannot be right for the statutory test of what is disclosed to be in the prosecutor's opinion. Of course the prosecutor must form an opinion, but the statutory test ought to be that which, to use the phrasing of Clause 3(1)(a), might undermine the case for the prosecution".

Otherwise, the prosecutor will form an opinion, however well or badly he may reach that conclusion, and there is no appeal or argument against it. If it turns out to be wrong his defence is, "That was my opinion. I don't hold to it now but it was my opinion at the time and it was the basis on which I withheld that material or information". That cannot be satisfactory. It must be the case that in all such proceedings there is in the end, and in the event of challenge, an objective test. It must be possible for the court to decide whether the material was relevant or not and not simply be turned aside by the historical fact that the prosecutor at that time formed the opinion that it was not relevant or did not fall within the terms of Clause 3. I beg to move.

Lord Campbell of Alloway

There is an inter-reaction with paragraph 2(d) of the code of practice, which is a draft code. There the prosecutor is defined as: the authority responsible for the conduct of criminal proceedings on behalf of the Crown". That authority—an authority—does not have an opinion but, according to the code, it may delegate particular duties to individuals. On delegation, that individual has an opinion. It does not read very happily in context with the way in which the code has been drafted.

Lord McIntosh of Haringey

Perhaps I may respond to that point. I do not believe that my argument for the amendments depends on who the prosecutor is. In introducing them I made it clear that I accept that the prosecutor will have an opinion. That is the case whether there is one prosecutor or a prosecutor delegating his responsibilities to other people. The point is that, unless there is an objective test, when there is a challenge as to whether something falls within the conditions of the clause, as the Bill is drafted there will be a complete answer saying, "That was my opinion. I do not hold to that opinion but that was the case at the time".

Lord Campbell of Alloway

I did not misunderstand the noble Lord. As he put the matter then, he put it quite clearly previously. All I am seeking to show is that, as drafted, if the code goes in the prosecutor is defined as the authority. The authority as such does not have an opinion. The person who has the opinion is the person to whom it is delegated. It is not a nit-picking point. It is a point which, with respect, ought to be addressed.

5.15 p.m.

Baroness Blatch

The point is that the prosecutor has an obligation to disclose. It is for the prosecutor to make a judgment as to what should be disclosed. That must meet the code of practice and the obligations under the law as it would be if the Bill passed into statute.

As I understand it, the main purpose of these amendments is to change the test for primary prosecution disclosure from a subjective test, reliant on the opinion of the prosecutor, to an objective test. In effect, material would be disclosed if in the opinion of a reasonable person it might undermine the prosecution case, rather than if the prosecutor thought it might have that effect.

The effect of an objective test would be to make the decision of the prosecutor subject to review in the courts. If the accused wanted to, he could challenge the decision on whether material undermined the prosecution case by seeking a judicial review. I do not think he would succeed in relation to Crown Court cases because the prosecutor's decision would seem to fall within the category of matters relating to trial on indictment which are excluded from judicial review. But no such exclusion applies in summary cases. There would be the potential for delay in a large number of summary cases if the accused sought a review of the prosecutor's decision. Similar considerations apply to the second and third amendments to Clause 3 and also to the amendment to Clause 9.

I also believe that there is a distinction to be drawn between the test for primary prosecution disclosure in Clause 3 and secondary prosecution disclosure in Clause 7. In Clause 3 the prosecutor is required to consider the effect of undisclosed prosecution material on the prosecution case. The only criterion that he can apply is his own judgment. But in Clause 7 the prosecutor is required to consider the effect of undisclosed prosecution material on something other than the prosecution case; that is, on the defence case as disclosed in a defence statement. This makes it easier to consider objectively rather than subjectively what might reasonably assist the defence that has been disclosed. And because the test in Clause 7 is an objective test it is open to challenge in the courts. Clause 8, accordingly, provides for the accused to make an application to the court.

In the light of this explanation, I hope that the amendment will not be pressed.

Lord Campbell of Alloway

That does not quite work. On analysis, it is not a question of judicial review, objective or subjective, or anything like that. As regards non-disclosure in Clause 19(3) there is a sanction for breach of the code. We are not concerned with judicial review at all. My noble friend has not dealt with the curious form of drafting in which an authority has an opinion. That was the point to which I was addressing my criticism.

Baroness Blatch

Of course, we are at an early stage of the Bill and I shall always take back points which have been raised and continue to inspect the drafting. My understanding is that the prosecutor is under a duty to disclose information which he believes will undermine the prosecution case, whereas I understand that the effect of the amendment would be for the prosecutor to stand in the shoes of a third reasonable person and make judgments about what a reasonable person might consider to be disclosable material. That could be challenged and could give rise to judicial review.

Lord McIntosh of Haringey

I hope that the effect of a challenge would not be a judicial review. That would be a gross abuse of that process, which is already being abused too often in our legal system. Judicial review should be the last resort when a piece of legislation is inadequately drafted. And I suspect that this legislation is inadequately drafted.

The noble Lord, Lord Campbell of Alloway, made a good point which I did not appreciate the first time that he made it. I am grateful to him for making the point so clearly the second time; namely, that it is extremely difficult for an authority, as opposed to an individual, to have an opinion. I am sure that, in turn, he will recognise that I have made it easier for the Committee to understand the point which he makes by including the whole text of the code of practice in Amendment No. 162 so that it is available to all Members of the Committee.

The fundamental point has not been answered; namely, in this series of amendments there should be an objective test of what is and what is not relevant. The Minister describes that as the prosecutor putting himself in the place of a reasonable Person. I do not dissent from that. If that is the way in which an objective test is defined in law, so be it. It is right for the prosecutor to do that.

It should not be that the opinion of the prosecutor cannot be challenged subsequently in any way, whether by judicial review or as part of the process of the case with which the disclosure is concerned. It should not be possible for the prosecutor to say subsequently to anybody, whether to a judge making a judicial review or a trial judge, "I may have been wrong but that was my opinion and you cannot do anything about that because the law says that it is only my opinion which matters". That cannot be right. I am not satisfied with the Minister's answer and I should like to test the opinion of the Committee.

5.22 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 67; Not-Contents, 111.

Division No. 2
CONTENTS
Addington, L.	Jay of Paddington, B.
Airedale, L.	Jeger, B.
Archer of Sandwell, L.	Jenkins of Hillhead, L.
Barnett, L.	Jenkins of Putney, L.
Beaumont of Whitley, L.	Kilbracken, L.
Birk, B.	Kirkhill, L.
Bruce of Donington, L.	Longford, E.
Carmichael of Kelvingrove, L.	Lovell-Davis, L.
Cocks of Hartcliffe, L.	McGregor of Durris, L.
Craig of Radley, L.	McIntosh of Haringey, L.
Dahrendorf, L.	McNair, L.
David, B.	Mallalieu, B.
Dean of Thornton-le-Fylde, B.	Mar and Kellie, E.
Desai, L.	Mason of Barnsley, L
Donaldson of Kingsbridge, L.	Merlyn-Rees, L.
Dormand of Easington, L.	Milner of Leeds, L.
Falkender, B.	Monkswell, L.
Falkland, V.	Morris of Castle Morris, L [Teller]
Farrington of Ribbleton, B.
Geraint, L.	Ogmore, L.
Graham of Edmonton, L. [Teller.]	Peston, L.
Grey, E.	Prys-Davies, L.
Hamwee, B.	Rea, L.
Hanworth, V.	Richard, L
Hams of Greenwich, L.	Rodgers of Quarry Bank, L.
Howell, L.	Russell, E.
Howie of Troon, L.	Seear, B.
Hughes, L.	Sefton of Garston, L.
Hutchinson of Lullington, L.	Serota, B.

Shepherd, L.	Turner of Camden, B.
Stoddart of Swindon, L.	White, B.
Taylor of Blackburn, L.	Williams of Mostyn, L.
Thomas of Walliswood, B.	Winchilsea and Nottingham, E.
Thomson of Monifieth, L.	Young of Dartington, L.

NOT-CONTENTS
Aberdare, L.	Kenyon, L.
Abinger, L.	Kinnoull, E.
Addison, V.	Lane of Horsell, L.
Ailsa, M.	Lauderdale, E.
Aldington, L.	Leigh, L.
Alexander of Tunis, E.	Lindsey and Abingdon, E.
Astor of Hever, L.	Long, V.
Barber, L.	Lucas, L.
Belhaven and Stenton, L.	Lyell, L.
Biddulph, L.	McColl of Dulwich, L.
Blaker, L.	Mackay of Ardbrecknish, L.
Blatch, B.	Mackay of Clashfern, L. [Lord Chancellor.]
Blyth, L.
Boardman, L.	Mackay of Drumadoon, L.
Borthwick, L.	Macleod of Borve, B.
Boyd-Carpenter, L.	Manton, L.
Brabazon of Tara, L.	Marlesford, L.
Brain of Wheatley, L.	Merrivale, L.
Burnham, L.	Mersey, V.
Butterworth, L.	Milverton, L.
Cadman, L.	Monk Bretton, L.
Campbell of Croy, L.	Montgomery of Alamein, V.
Carnegy of Lour, B.	Mountgarret, V.
Cannock, L.	Moyne, L.
Chesham, L. [Teller.]	Munster, E.
Clanwilliam, E.	Murton of Lindisfarne, L.
Courtown, E.	Nelson, E.
Craigavon, V.	Newall, L.
Cumberlege, B.	Orkney, E.
Dean of Harptree, L.	Orr-Ewing, L.
Denton of Wakefield, B.	Pender, L.
Dixon-Smith, L.	Pym, L.
Elles, B.	Quinton, L.
Elton, L.	Rankeillour, L.
Faithfull, B.	Rees, L.
Ferrers, E.	Rennell, L.
Flather, B.	Renwick, L.
Fraser of Carmyllie, L.	Romney, E.
Gardner of Parkes, B.	St. John of Bletso, L.
Geddes, L.	Seccombe, B.
Gisborough, L.	Selborne, E.
Goschen, V.	Shaw of Northstead, L.
Hailsham of Saint Marylebone, L.	Skelmersdale, L.
Harding of Petherton, L.	Soulsby of Swaffham Prior, L.
Harmsworth, L.	Stewartby, L.
Harrowby, E.	Strathcarron, L.
Hayhoe, L.	Strathclyde, L. [Teller.]
Henley, L.	Swansea, L.
Hogg, B.	Swinfen, L.
Holderness, L.	Thomas of Swynnerton, L.
HolmPatrick, L.	Torrington, V.
Hooper, B.	Vivian, L.
Howe, E.	Wakeham, L.
Inchcape, E.	Westbury, L.
Inglewood, L.	Wynford, L.
Kenilworth, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.31 p.m.

[Amendment No. 6 not moved.]

Baroness Mallalieu moved Amendment No. 7:

Page 2, line 23, after ("accused") insert ("or assist the defence case so far as it is known").

The noble Baroness said: As the Committee knows, Clause 3 sets out the duties of the prosecutor in respect of primary disclosure. As I understand it, its purpose is in part to enable the issues between prosecution and defence to be clarified before trial. The purpose of the amendment is, in effect, to clarify the obligations of the prosecutor at that stage and also to seek to clarify the issues between the parties as early as possible.

Clause 3(1), as amended by the amendment, would require the prosecutor to disclose to the accused not just material which would undermine his case but also any material which would assist the defence case "as it is known". If the defendant has maintained his right to silence and said nothing upon arrest or during later interview, or if he has answered questions but has played his cards close to his chest and not shown his defence, then the amendment would have no effect. The prosecution would be able only to guess what the likely defence would be.

However, where the defence, as is usual practice since the Criminal Justice and Public Order Act came into force, has answered the questions put, and, indeed, has revealed the defence clearly to the Crown, it must surely make sense for the prosecution to disclose the material in its possession which assists the defence case.

Judging by her answer to my noble friend Lord McIntosh of Haringey in relation to Amendment No. 5, the Minister seems to be set upon a subjective test for the prosecutor at that stage. The noble Baroness must appreciate, or try to follow, the difficulties which a prosecutor will be placed in by the clause as currently drafted. Perhaps I may just give some instances of the difficulties involved.

A prosecutor faced with the clause unamended will have to decide whether to disclose material which at present he would disclose without question under the existing common law rule. For example, should he or should he not disclose to the defence previous statements made by a witness upon whom he is going to rely whether or not they are inconsistent? Should he disclose earlier accounts by witnesses which are made in the form of notes by investigators or drafts of statements which are later prepared? That is the sort of material which Mr. Justice Henry (as he then was) ordered should be disclosed in the Guinness trial and which has been disclosed subsequently in criminal cases. Should he or should he not show, for example, information in his possession which demonstrates that the complainant—or, indeed, another witness—has been paid or has sought reward for the account that he will give at the trial?

Should or should not the prosecutor disclose unusual situations of which he is aware and on which he has related material; for example, where a witness has been through his evidence in rehearsal for a television programme or has given his evidence as a result of hypnosis? That may sound far fetched, but there are quite a number of cases coming before the courts now where recovered memory syndrome is relevant and hypnosis has led to the initial complaint.

Under the Bill as drafted the prosecutor's decision as to whether to disclose at that primary stage is subjective. Clearly it is for him to try to determine—and a difficult task he will have in all those instances and many others—what material undermines his case. The result will inevitably be a considerable degree of inconsistency as between one prosecutor and another. It seems to me that the situation is not only inevitable but also potentially very fraught with danger. I do not pretend that the amendment that I now propose the Committee should consider would remove that danger. However, it does at least give some assistance to a prosecutor who already, from the material before him, knows the nature of the defence. It enables him to ensure that the defence has access to the relevant material to assist it at an earlier stage.

I suggest that it would be ironic if legislation which was intended to prevent what has sometimes been described as the poker game of the defence playing its cards close to its chest and not disclosing the issues were to be turned in effect into a poker game where the Crown was required to withhold material which it knew was relevant to the defence until a later stage in the proceedings. Where material is clearly relevant to a defence of which the Crown is aware, in our submission it must clearly be right that that should be disclosed at as early a stage as reasonably possible so that the issues can be clarified and the establishment of the truth facilitated. I beg to move.

Lord Campbell of Alloway

With respect, would not material known to assist the defence inevitably, as a general rule, undermine the case for the prosecution? If that is right, and although I accept everything that the noble Baroness said about disclosure and its desirability, is it really necessary?

Baroness Blatch

The amendment tabled by the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, but spoken to by the noble Baroness, Lady Mallalieu, would widen the test for prosecution disclosure but in a different way to the amendments tabled by the noble Lord, Lord Airedale. It would require the prosecutor to disclose under Clause 3 not only material that he thought might undermine the prosecution case but also material that he thought might assist the defence case as far as it was known.

Having considered the matter carefully, I do not believe that it would add anything of substance to the current test in the Bill. The amendment would also introduce an element of uncertainty into what is intended to be a clear and ordered scheme for prosecution and defence disclosure. Let us suppose that the accused has indicated to a police officer an explanation for the offence with which he has been charged. That will be passed on to the prosecutor and will tell him something about what the defence case might be. But if that material points away from the accused, it is very likely to undermine the prosecution case and fall within the existing disclosure situation, which I believe was partly the point made by my noble friend Lord Campbell of Alloway.

Alternatively, let us suppose that the prosecutor does not have material of that kind. Under the wider test, if he tries to guess what the defence might be, based on a rumour or second-hand information, he may have to disclose all sorts of material which may have no bearing at all on the actual defence. I have to say that I find that both inefficient and unnecessary. The proper means of defence disclosure is a defence statement given under Clause 5 or Clause 6 of the Bill. Until that happens, the prosecutor has no firm indication of what undisclosed material will assist the defence that the accused actually intends to advance. When a defence statement has been given, the prosecutor is then able to assess properly whether he has any undisclosed material which might reasonably assist that defence. I hope that the amendment will not be pressed.

Baroness Mallalieu

I am bound to say that the impetus for this amendment comes from a former senior Treasury counsel prosecuting at the Central Criminal Court. I am concerned because although I fully accept what the noble Lord, Lord Campbell of Alloway, said and that in most cases it will not be difficult for a prosecutor to look at the material and say to himself, "This will undermine my case if the defence see it, and therefore it should be disclosed at the primary stage", there will be other pieces of material where doubt will arise. I have given some instances and I believe that both of us could think of others without great difficulty. Far from being certain as regards the way the clause is presently drafted, in my view it is likely to lead not only to considerable inconsistencies as between one prosecutor and another but also to prosecutors retaining material which might well resolve the issues and, who knows, at the end of the day save a great deal of court time and prevent investigative time as regards the defence from being wasted, most of which is likely to be funded by public funds. I feel that this is a matter of principle. I wish to test the opinion of the Committee.

5.41 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 99.

Division No. 3
CONTENTS
Ackner, L.	Hamwee, B.
Addington, L.	Hanworth, V.
Airedale, L.	Harris of Greenwich, L.
Archer of Sandwell, L.	Haskel, L.
Beaumont of Whitley, L.	Howell, L.
Blease, L.	Howie of Troon, L
Broadbridge, L.	Hughes, L.
Carmichael of Kelvingrove, L.	Hylton-Foster, B.
Craig of Radley, L.	Jay of Paddington, B.
Dahrendorf, L.	Jeger, B.
David, B.	Jenkins of Hillhead, L.
Dean of Thornton-le-Fylde, B.	Jenkins of Putney, L.
Desai, L.	Kennet, L.
Dormand of Easington, L.	Kilbracken, L.
Falkender, B.	Kirkhill, L.
Falkland, V.	Longford, E.
Farrington of Ribbleton, B. [Teller.]	Lovell-Davis, L.
	McIntosh of Haringey, L.
Geraint, L.	McNair, L.
Graham of Edmonton, L. [Teller.]	Mallalieu, B.
Grey, E.	Mar and Kellie, E.
Halsbury, E.	Mason of Barnsley, L.

Merlyn-Rees, L.	Serota, B.
Milner of Leeds, L.	Shepherd, L.
Monkswell, L.	Simon of Glaisdale, L.
Morris of Castle Morris, L.	Stoddart of Swindon, L
Ogmore, L.	Taylor of Blackburn, L
Peston, L.	Thomas of Walliswood, B.
Prys-Davies, L.	Thomson of Monifieth, L.
Rea, L.	Turner of Camden, B.
Richard, L.	Whaddon, L.
Rodgers of Quarry Bank, L.	White, B.
Russell, E.	Williams of Mostyn, L.
Seear, B.	Winchilsea and Nottingham, E.
Sefton of Garston, L.	Young of Dartington, L.

NOT-CONTENTS
Abinger, L.	Howe, E.
Addison,V.	Inchcape, E.
Ailsa, M.	Inglewood, L.
Aldington, L.	Jeffreys, L.
Alexander of Tunis, E.	Kenyon, L.
Ashbourne, L.	Kinnoull, E.
Belhaven and Stenton, L.	Lane of Horsell, L.
Biddulph, L.	Lauderdale, E.
Blaker, L.	Leigh, L.
Blatch, B.	Long, V.
Blyth, L.	Lucas, L
Boardman, L.	McColl of Dulwich, L.
Borthwick, L.	Mackay of Ardbrecknish, L
Boyd-Carpenter, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Brabazon of Tara, L.
Braine of Wheatley, L.	Mackay of Drumadoon, L.
Burnham, L.	Macleod of Borve, B.
Butterworth, L.	Marlesford, L.
Cadman, L.	Merrivale, L.
Caithness, E.	Mersey, V.
Campbell of Croy, L.	Milverton, L.
Carnegy of Lour, B.	Monk Bretton, L.
Carnock, L.	Montgomery of Alamein, V. [Teller.]
Chesham, L. [Teller.]	Moyne, L.
Clanwilliam, E.	Munster, E
Colwyn, L.	Murton of Lindisfarne, L.
Courtown, E.	Nelson, E
Craigavon, V.	Newall, L.
Craigmyle, L.	Orkney, E.
Cumberlege, B.	Orr-Ewing, L.
Dean of Harptree, L.	Pearson of Rannoch, L.
Denton of Wakefield, B.	Pender, L.
Dixon-Smith, L.	Quinton, L.
Elles, B.	Rankeillour, L.
Faithfull, B.	Rees, L.
Ferrets, E.	Rennell, L
Flather, B.	Renwick, L.
Fraser of Carmyllie, L.	Romney, E.
Gardner of Parkes, B.	Selborne, E
Gisborough, L.	Shaw of Northstead, L.
Goschen, V.	Skelmersdale, L
Harding of Petherton, L.	Soulsby of Swaffham Prior, L
Harmar-Nicholls, L	Stewartby, L.
Harrowby, E.	Strathcarron, L.
Hayhoe, L.	Strathclyde, L. [Teller.]
Henley, L.	Swansea, L.
Hogg, B.	Thomas of Swynnerton, L.
Holderness, L.	Vivian, L.
HolmPatrick, L.	Westbury, L.
Hooper, B.	Wynford, L

Resolved in the negative, and amendment disagreed to accordingly.

5.49 p.m.

Baroness Mallalieu moved Amendment No. 8:

Page 2, line 25, at end insert ("and (except as may be ordered by the court not to be disclosed) disclose to the accused the written witness statements which have been taken so far by the investigator.").

The noble Baroness said: I fully accept that the wording of this proposed amendment may appear to take matters further than I intend. However, I hope that the noble Baroness will look at the amendment, see the mischief at which it is aimed, and, if it needs some tidying up, will undertake that that should happen.

The purpose of the amendment is to ensure that in summary cases the prosecution must disclose to the accused the evidence which it intends to call before the accused is required to serve a defence statement. At present, in many cases no witness statements are served before the trial in a magistrates' court. Advance information may simply require the service on the accused of a statement of the case but no actual witness statements.

Under the Bill as presently drafted an obligation is placed on the prosecution to disclose statements or material which undermine its case but not those which support it. It would, of course, be a nonsense if a prosecutor chose to follow that course, but that is the course which the Bill as presently drafted appears to indicate.

If the wording appears to oblige the prosecutor to serve all material in his possession, that goes very much further than I intend. However, I hope that the noble Baroness will respond favourably to the need to include some provision in this legislation. If the defence is required to serve a statement, the prosecution should serve on it, or at the very least disclose, those statements which will form its case rather than simply those which undermine the case which it proposes to adduce. I beg to move.

Baroness Blatch

Again, as I understand it, the amendment requires the prosecutor, in addition to disclosing material which meets the test for disclosure under Clause 3, to disclose to the accused any witness statements so far taken by the police. The requirement would apply in both Crown Court and magistrates' court cases.

In so far as witness statements form part of the case against the accused, they will already have been provided in Crown Court cases. They may have been provided earlier as part of advance information in respect of offences which are triable either way. There is no such requirement in relation to summary offences, but the great majority of these are straightforward and are currently dealt with extremely quickly. It would not materially assist the accused to have copies of witness statements in advance. Having to provide them would represent a new and unnecessary burden on the prosecutor and would slow down the delivery of justice in magistrates' courts.

In so far as witness statements do not form part of the case against the accused, they will in any event be disclosed to the accused if they might undermine the prosecution case.

The noble Baroness will note that I reject the amendment, but she posed a question. I am prepared to say that we shall continue to look at the wording, but at the moment, on the face of it, I believe that the amendment is not acceptable.

Baroness Mallalieu

I appreciate that the noble Baroness has had very little time to consider the amendment carefully. However, I suggest that when she does so she will see the nonsense which results from the Bill as presently drafted. I make it clear that I am dealing only with summary trials where the accused may not see the statements which will be used in relation to the witnesses relied on by the Crown. It must be a nonsense for a prosecutor in such a case, when he does not serve those statements on which he will rely, to be required under the Bill to serve the statements which undermine that material.

I hope that the noble Baroness will look carefully at the Bill in the light of what has been said, as she indicated that she will. I hope that she will feel it right, if necessary, to take steps to introduce her own amendments at a later stage to remedy what is at present an absurdity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 and 10 not moved.]

Baroness Blatch moved Amendment No. 11:

Page 3, line 6, leave out ("believes") and insert ("concludes").

The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 11, I speak also to Amendments Nos. 33, 40 and 45, which have the same effect.

The amendment to Clause 3 is a minor amendment improving the description in the Bill of what a court does in considering whether it is in the public interest to disclose material brought before it for a ruling.

The court must weigh the competing public interests involved. For example, there is a public interest in not revealing the identity of persons who give information to the police which assists the detection of crime. There is also a public interest in disclosing material which would enable a defendant to put forward a tenable case in its best light. As the noble and learned Lord the Lord Chief Justice stated in the 1994 case of Keane, if the material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. However, the court must examine each case on its merits in the light of the particular circumstances. The degree of relevance of the material to the defence is obviously one factor which the court will bear in mind.

Given that the court must conduct a balancing exercise between the competing interests and come to a decision, we think that it is more accurate to say that material must not be disclosed if the court concludes that it is not in the public interest to disclose it than that the court believes that it is not in the public interest to disclose it. Accordingly, Amendment No. 11 replaces "believes" with "concludes" in Clause 3(6), and we have tabled identical amendments—Amendments Nos. 33, 40 and 45—to Clauses 7(5), 8(4) and 9(8) to achieve the same effect.

Although he is not in his place, I understand that the noble and learned Lord the Lord Chief Justice also takes the view that "concludes" is a better word to use than "believes" in this context. I beg to move.

Lord McIntosh of Haringey

Who am I to go against the Lord Chief Justice?

This series of amendments serves to propagate the belief that the courts are entirely rational. They do not believe things, they conclu4e them after an exhaustive process of ratiocination. I wish that were the case. I do not believe that it is true, but I am quite content to go along with the pretence which is contained in the amendments.

Viscount Colville of Culross

I entirely agree with this and the subsequent amendments. However, I should like the noble Baroness to confirm one point.

I am looking at paragraph 6.6 of the draft code of practice. I hope that there is no suggestion that the word "believes" there will be changed to "concludes", because it is very important that the prosecutor should be put under a duty to look very carefully and determine what he believes to be in the public interest to disclose. It is crucial that the prosecutor should put before the court all the material in his possession for the court to decide what is or what is not in the public interest to disclose. I hope that there will be no consequential amendment to the code of practice, because that is a totally different matter when it is in the hands of the prosecutor rather than in the hands of the court.

Baroness Blatch

It is my understanding that the noble Viscount is right in his assumption. However, at this stage the code of practice is not a definitive document and will be subject to change. On this particular point I believe that the noble Viscount is right.

On Question, amendment agreed to.

6 p.m.

Baroness Blatch moved Amendment No. 12:

Page 3, line 8, leave out ("need") and insert ("must").

The noble Baroness said: In speaking to Amendment No. 12 I shall speak also to Amendments Nos. 34, 41 and 46.

Amendment No. 12 is a minor amendment to Clause 3 to make its provisions on intercepted material more consistent with the Interception of Communications Act 1985. As drafted, Clause 3(7) provides that material need not be disclosed if it has been intercepted in obedience to a warrant issued under Section 2 of the 1985 Act or if it indicates that such a warrant has been issued or such material has been intercepted. The intention was to disapply the requirements for disclosure in the Bill as regards intercepted material or material indicating that a warrant had been issued or interception had taken place. Section 6 of IOCA requires the Secretary of State when issuing a warrant to make arrangements to secure that the dissemination of intercepted material is kept to a minimum and that it is destroyed as soon as it is no longer necessary to retain it in relation to the purposes for which it is issued. Your Lordships sitting in a judicial capacity decided in the recent case of R. v Preston and Others that the destruction of intercepted material was not only a permissible act but one which those responsible were hound by Section 6 to perform. For this reason, on reflection we have decided that it would be more consistent with the terms of the 1985 Act, as considered in that case, to provide that the prosecutor must not, rather than need not, disclose intercepted material. In addition to this amendment, we have tabled identical amendments—Amendments Nos. 34, 41 and 46—to Clauses 7(6), 8(5) and 9(9). I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Broadbridge)

I must inform the House that if Amendment No. 13 is agreed to I cannot call Amendment No. 14.

Baroness Blatch moved Amendment No. 13:

Page 3, line 13, leave out from ("section") to end of line 24 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").

The noble Baroness said: I beg to move.

Lord Airedale: I do not understand the words: a period beginning and ending with such days as the Secretary of State prescribes".

Surely, Secretaries of State prescribe dates "on which" things are to happen, not "with".

Baroness Blatch

The noble Lord raises a particularly pedantic point. However, I shall go away and look at the wording. I hope that in promising to look at the word "with" the amendment will be passed.

On Question, amendment agreed to.

[Amendment No. 14 not moved.]

Clause 3, as amended, agreed to.

The Deputy Chairman of Committees

I must inform the Committee that Amendments Nos. 16, 17 and 18 are amendments to Amendment No. 15. The Marshalled List contains a printer's error. Line 5, to which Amendment No. 16 refers, has been placed on the wrong line of Amendment No. 15. It should be one line higher up.

Baroness Blatch moved Amendment No. 15: After Clause 3, insert the following new clause—

PRIMARY DISCLOSURE: FURTHER PROVISIONS

(".—(1) This section applies where—

1. (a) the prosecutor acts under section 3, and
2. (b) before so doing he was given a document in pursuance of provision included, by virtue of section 17(3), in a code operative under Part II.

(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.").

The noble Baroness said: The government new clause after Clause 3 is designed to replace Clause 4. As currently drafted, Clause 4(1) requires the prosecutor, when he makes primary prosecution disclosure, to give the accused a document that indicates the nature of undisclosed prosecution material relating to the offence which the prosecutor believes is not sensitive. Subsections (2) and (3) then define what is meant by "prosecution material" and "sensitive". Because there is no direct reference to what is done in pursuance of a code of practice under Part II, the clause implies that this is a separate document prepared by the prosecutor on the basis of the material obtained by the police. What happens at present—and what we intend to happen in future—is that the prosecutor gives the accused the schedule of non-sensitive material prepared by the police rather than creating a separate document. The new clause after Clause 3 replaces Clause 4 in its entirety. It applies where the prosecutor makes primary prosecution disclosure under Clause 3 and, before doing so, has been given the schedule of non-sensitive material referred in Clause 17(3). He is to give that schedule to the accused at the same time that he makes primary prosecution disclosure. I beg to move.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 15, Amendment No. 16: Line 5, after ("section") insert ("17(2A) and").

The noble Lord said: I indicated a desire to take together Amendments Nos. 16 to 18 and 88. Somehow, in the groupings, Amendments Nos. 15 and 88 have been separated, although clearly they should not be. Amendment No. 16 has to be debated before Amendment No. 15 can be agreed.

I recognise that in some respects the new Clause 4 is a better clause than the one in the Bill as printed. On this occasion I do not refer to the constitution of the Labour Party. The advantage of the new Clause 4 as proposed in Amendment No. 15 is that makes clear that the document to be disclosed is to be produced by the police, not compiled by the prosecutor from police material. That is very welcome. It is also true that the new clause is considerably simpler than the existing clause. I suppose that, even in the absence of the noble Lords, Lord Renton and Lord Campbell of Alloway, we must he grateful for that.

There are still very substantial defects in the new Clause 4, and very substantial ways in which the document referred to is not securely the schedule to which the Royal Commission referred and to which the Minister was good enough to refer in letters to me before Second Reading. It is important that this should not simply be a document which indicates the nature of material, as provided in Clause 17(3), but that it should be specifically a schedule, that it should be complete, that the police should have the duty to ensure that what they provide is complete, that the prosecutor should have the duty to ensure that the disclosure document that he issues is complete, and that the accused should have adequate power to demand the relevant information. That is what my amendments provide for.

Amendment No. 16 is a paving amendment for Amendment No. 88 which provides in Clause 17 a further condition that the prosecutor must be given any material prepared under subsection (2) referred to in new Clause 4, must have access to the material indicated in it, though not necessarily have it in his possession, and may amend the document having himself reviewed whether or not it is in the public interest that it should not be disclosed to the accused. The importance of this is that the Bill as drafted, and as it is being redrafted, still provides that it is the police who decide what is sensitive and what is or is not in the public interest rather than the prosecutor. In our view, the prosecutor should make that decision, not the police. In later amendments we deal further with the issue of sensitive material. We have amendments in Part II which spell out in more detail what is listed in the code of practice as sensitive material. It will be seen that the list is very wide. The decision as to what is sensitive and to what is not and what is in the public interest and what is not is a matter of considerable public importance. It should be the prosecutor rather than the investigator who has that responsibility. That is the purpose of Amendments Nos. 16 and 88.

Amendment No. 17 provides that the prosecutor has the responsibility to ensure that the document lists all the material relevant to the offence, the offender or the surrounding circumstances of the case, whether or not the prosecution intend to rely upon the material, in sufficient detail to enable the material to be correctly identified. This is the crux of the matter as far as the schedule is concerned. This is what a schedule is for. It is a complete list of documents compiled in such a way that they can be identified so that the defence can interpret what they mean. On the basis of those documents and only on that basis, the defence can make an adequate disclosure in response. I believe that the wording in Amendment No. 17 is much closer to the original intention of the Royal Commission than either the consultation paper published earlier this year or this Bill. Despite the well meaning and helpful words of the Minister, we would wish the provision for an adequate schedule to be on the face of the Bill.

Thirdly, Amendment No. 18 is again an amendment to Amendment No. 15. It would allow the accused to have increased power to demand material: in order to determine the full circumstances of the case before determining appropriate defence disclosure".

The accused may therefore apply to the court. It is not a matter for negotiation between prosecution and defence; it is a matter where the accused would apply to the court for further material to be made available. The purpose of all that is not to try to make life more difficult for the prosecution. Far from it. Its purpose is to ensure that a defence disclosure is properly made in the light of the facts that ought to be available to the defence in order to make a defence disclosure.

It has been our position all along that there should be a defence disclosure, although we shall come to the terms of that disclosure later. However, it must be on the basis of the necessary information from the prosecution in the first place. So although we welcome the thrust of some of the amendments in the new clause and the improvements which are made in it, there are still a number of significant points on which the Bill needs to go further than it does. I beg to move Amendment No. 16.

Baroness Blatch

The amendments would provide for the prosecutor to be given the schedule of sensitive material and to have access to all material listed on it and would allow him to amend the schedule in the light of his own decision about whether it was in the public interest to disclose the material listed.

The amendments would also insert a reference to the sensitive schedule, which may have been amended, into subsection (1)(b) of the new clause after Clause 3. In conjunction with subsection (2), that would mean that the prosecutor would have to give the accused both the non-sensitive and the sensitive schedules. The amendments would also require the prosecutor to ensure that the document he was given listed all material relevant to the offence or the offender or the surrounding circumstances of the case, whether or not the prosecution intends to rely upon the material, in sufficient detail to enable the material to be correctly identified.

The amendments would also enable the accused to apply to the court for the disclosure of undisclosed material on the document if he reasonably believed that he needed to see it in order to determine the full circumstances of the case before making a defence disclosure. That amounts to a very different disclosure scheme from the one in the Bill. There are a number of serious difficulties with it.

The accused would automatically have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. That would significantly impede the fight against serious crime. Despite all the developments in the law on disclosure in the past few years, no responsible person has ever questioned the need to protect sensitive material such as that. I cannot believe that the noble Lords intended their amendments to have that effect.

On the other hand, if the sensitive schedule is not to be given to the accused, the amendment to Clause 17 is unnecessary. The draft code of practice already provides for the prosecutor to receive the sensitive schedule and to have access to all sensitive material. There is no need to amend the schedule if it is not to be given to anyone. The proper course is for the prosecutor to consider whether any sensitive material falls within the tests for disclosure and, if it does, to seek a court ruling on whether it should be disclosed. Depending on the court ruling, the prosecutor then acts accordingly. If sensitive material does not fall within the disclosure tests, then it is effectively protected by not disclosing either the material or the sensitive schedule.

Also, the accused would effectively have access to all prosecution material if he could make out a case for it to the court. How is the court to know whether the belief of the accused that he needs to see prosecution material is reasonable? At that stage the accused will have disclosed no information about his defence; there is no criterion by which to judge the reasonableness of any request.

More generally, if the accused has access to all prosecution material before making a defence disclosure, we have returned to the current disclosure regime. It would be open to the accused to trawl through all the material in the hope of finding something which the prosecution could not disclose, thereby forcing the abandonment of the proceedings, or simply to elicit promising lines of inquiry rather than material supporting his own version of events. I am afraid that that is completely contrary to the principles underlying Part I of the Bill. I may say too that it is a bit at odds with the sentiments expressed by the noble Lord, Lord McIntosh, when he spoke at Second Reading, because it seriously changes the nature of the Bill.

The noble Lord made a point about the police deciding themselves what should be sensitive. The police will, of course, take an initial view on whether material is sensitive for the purposes of preparing the schedules. But it will still be for the prosecutor to decide whether material should be disclosed and whether material from all that is retained needs to be put before the court for a ruling because of its sensitivity. For those reasons, I hope that the Committee will reject the amendments.

6.15 p.m.

Lord McIntosh of Haringey

I have listened carefully to what the Minister said. She has certainly pointed out a major respect in which the amendments go further than I had intended. For that, I apologise to the Committee. It was never my intention to secure that a schedule of sensitive material should be made available to the accused. My intention was to ensure that the police were not responsible for the final decision about what was sensitive and what was not. The prosecutor is responsible for that decision.

Again, I have listened to what the Minister said. If she is right that it is the responsibility of the prosecutor, then she will hear no more of this. I am riot sure what is meant by the initial view taken by the police and what force that has in the interaction. Of course, we must now talk about "revealing" and riot "disclosing".

I believe that, as in Amendment No. 17, it is right that the prosecutor should have the responsibility of ensuring that the disclosure document is complete. I recall that the Royal Commission said that both parts of the process—the compilation of a schedule by the investigator and the compilation of a schedule by the prosecution—should be subject to a signed certificate. We shall come to that point when we deal with the issue of the named officer.

I also believe that it is right, as in Amendment No. 18, for the accused to have the increased power to demand material. However, it was never my intention—and I apologise for the fault in the wording—that the accused should have access to a schedule of sensitive material. As the Minister said, in many ways that would undermine the force of the proposals made in the Bill. I do not wish to do that and, on that basis, I beg leave to withdraw Amendment No. 16.

Amendment No. 16, as an amendment to Amendment No. 15, by leave, withdrawn.

[Amendments Nos. 17 and 18, as amendments to Amendment No. 15, not moved.]

On Question, Amendment No. 15 agreed to.

Clause 4 [Primary disclosure: further provisions]:

On Question, Whether Clause 4 shall stand part of the Bill?

Baroness Blatch

I beg to move that this clause do not stand part of the Bill.

Clause 4 negatived.

Clause 5 [Compulsory disclosure by accused]:

[Amendment No. 19 not moved.]

Lord McIntosh of Haringey moved Amendment No. 20:

Page 4, line 3, leave out ("or purports to comply with it").

The noble Lord said: This is a probing amendment. It is in one sense defective in that there ought to be another amendment in the same terms to Clause 6 (page 5, line 13). We simply do not understand what is the force of the phrase, or purports to comply with it".

I understand that the prosecutor complies with the provisions, but I cannot understand what is the significance of "purports to comply with it". To me, "purports" means that the prosecutor does not really mean to comply, that he pretends to comply. Perhaps I misunderstand the thrust of the phrase in legal language. I beg to move.

Baroness Blatch

I hope I can be helpful here. Clause 5(1)(b) provides that Clause 5 applies where the prosecutor complies with the requirement to make primary prosecution disclosure in Clause 3 "or purports to comply with it". The amendment removes those words and is a probing amendment, as the noble Lord confirmed.

This formulation is needed because, although the prosecutor may genuinely believe that he has disclosed all material which he thinks undermines the prosecution case, he may not in fact have disclosed all such material. There might be some material in the possession of the police which he has not inspected, although he would be entitled to inspect it, and which (if he had inspected it) he might think undermined the prosecution case. In cases where there is this kind of inadvertent non-disclosure, the prosecutor does not actually comply with Clause 3 but only purports to do so. I notice that the noble Lord looks perplexed at the moment, as I did when I first read this explanation. But even if this does happen in respect of one item of material, the prosecutor will have disclosed all other material which he thinks may undermine the prosecution case, and the requirements in Clause 5 should still apply.

In the light of that explanation, I hope that the noble Lord will agree to withdraw this amendment. The noble Lord still appears perplexed.

Lord McIntosh of Haringey

I can perfectly well understand that the prosecutor can make a mistake, and that he may think he has complied, may intend to comply, may want to comply and may fail to do so. That is perfectly clear. But the word "purports" puzzles me. Surely, the normal phrase that would be used is, "has used his best endeavours to comply", or something of that sort. But "purports to comply" means to me that he is pretending to comply when he has not really done so. It is a matter of the meaning of words in the English language. I did not take the opportunity to look up any of the relevant words in the dictionary; perhaps I should have done.

If I am right about the word "purports", I may return to it at a later stage. In the meantime, I am grateful for the explanation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 21:

Page 4, line 5, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 24 and 28. These amendments are concerned with the detailed written case statement which we suggest the prosecution should prepare. This is not the same as the "written witness statements" dealt with in the amendment moved by my noble friend Lady Mallalieu. This is, as it were, the analysed prosecution case statement.

The reason for requesting it is, as I said when speaking to an earlier amendment, not that we want to make life more difficult for the prosecution; on the contrary, we want to make sure that the defence disclosure is adequate because it is based on the proper prior information.

The Bill as drafted requires the defence to set out the nature of its defence, the matter on which it takes issue with the prosecution and the reasons for taking issue with the prosecution, in order to obtain secondary disclosure. If the defence does not produce an adequate defence statement, it may be subject to adverse influence at the trial; or indeed, if the defence is changed after the provision of the defence statement, that may be subject to adverse comment at the trial. So far, so good. That depends on the ability of the defence to produce a proper statement. That in turn depends on a requirement for the prosecution to set out its case at this stage.

I believe I am right in saying that at Second Reading the Minister gave the impression that she thought Clause 5 already provided for that. It is true that in cases to be tried at the Crown Court the defence will have been served with the indictment, evidence which goes to the prosecution case, evidence which appears to undermine the prosecution case, and the schedule of unused and non-sensitive information. But it will not have been provided with a full statement of the prosecution case.

If the defence is required to produce all of that, surely the principle of equality of arms requires that it should apply to the prosecution as well. I use the phrase "equality of arms" deliberately. It is used in Article 6 of the European Convention on Human Rights; and we have been assured that everything in this Bill is in accordance with that convention.

The wording used in these amendments is in the same terms as the wording of what is required for preparatory hearings. So it already has some legitimacy in legislative terms. We believe that there should be the possibility of adverse comment if it is not done, as there is the possibility of adverse comment for faults in the defence disclosure. All of this will be dealt with in more detail when we come to Clause 10 of the Bill.

We believe it is important that the defence case should be well enough informed for it to be comparable with the prosecution case, for both of them not to be changed without good reason, and for the prosecution to have been so codified. I do not mean that every single decision has to be made in advance; but the prosecution case has to be set out in such a way that the prosecution does not go on a fishing expedition and build or shape its case on the basis of the defence disclosure. In other words, the same rules must apply to both. That is the purpose of these amendments. I beg to move.

6.30 p.m.

Lord Ackner

This amendment seems to overlap with my Amendment No. 23 and should perhaps be grouped with it. As might have been anticipated, my amendment is less ambitious than that of the noble Lord, Lord McIntosh. It arises in the same way, although I emphasise it in a somewhat different way.

One should bear in mind that the Government's proposals in regard to the obligation cast upon the defence has gone considerably further than that proposed by the Royal Commission. In paragraph 68 (page 99) the Royal Commission reported as follows: In most cases disclosure of the defence should be a matter capable of being handled by the defendant's solicitor (in the same way that alibi notices are usually dealt with at present). Standard forms could be drawn up to cover the most common offences, with the solicitor having only to tick one or more of a list of possibilities, such as 'accident', 'self-defence', 'consent', 'no dishonest intent', `no appropriation', 'abandoned goods', 'claim of right', 'mistaken identification' and so on. There will be complex cases which may require the assistance of counsel in formulating the defence". The proposal here has gone a great deal further. Clause 5(3) casts upon the accused the obligation to give a defence statement. That is a statement which—I quote from subsection (4)—sets out: in general terms the nature of the accused's defence"— that is according to the Royal Commission— indicating the matters on which he takes issue with the prosecution, and … setting out, in the case of each such matter, the reason why he takes issue with the prosecution". I do not in any way differ from the proposal to widen the obligation put upon the defence. But what, apparently, is being sought to be done is almost to assimilate the criminal procedure to the civil procedure, whereby the defendant in a piece of civil litigation puts in a defence to a statement of claim which sets out in detail the nature of the claim. That is not done in this case. What is relied upon (under Clause 5(2)(b)) is: a copy of the notice of the prosecution case [served] on the accused under section 5 of the Magistrates' Courts Act 1980". The prosecution's case is defined in that section as obliging the specification of the charge or charges and the inclusion of a set of documents containing the evidence. That is all. So when the defendant comes to plead to that statement he has probably to infer just how the prosecution is basing its case. What is required—my amendment is in a briefer form than that provided by the noble Lord, Lord McIntosh—is an obligation to set out the material facts: a detailed statement of the facts relied upon and the inferences to be drawn". I have not included all the various matters which would be ordered at a preparatory hearing, anticipating that it might be said that that places too great a burden upon the prosecution. If the prosecution do provide what I respectfully suggest is the bare minimum—namely: a detailed statement of the facts relied upon and the inferences to be drawn therefrom"— that will enable the defendant, who is anxious to carry out his duty, in particular to indicate (Clause 5(4)): the matters on which he takes issue with the prosecution, and … in the case of each such matter, the reason why he takes issue with the prosecution". To expect him to perform those two functions purely on the basis of a statement of the charge and the statements of witnesses is, I believe, asking too much and spoils the whole basis of the operation, which is to say clearly to the defendant, "This is our case. To what extent do you take issue with it?"

That is what the prosecution seeks to find out and I support it in its quest. But if the prosecution wants to find that out effectively, it must set out the nature of its case and the inferences which it wishes to draw from the facts that it specifies.

Therefore, I support the principle behind the noble Lord's amendment, though in due course I should have suggested my amendment: in lieu of his if his proved too ambitious.

Viscount Runciman of Doxford

I thank the noble and learned Lord for voicing those concerns a great deal more eloquently than I was about to do. I should like merely to endorse them. On the basis of what I said earlier, I am not close enough to the detail of what we are discussing this afternoon to do more than ask the Minister to take seriously certain worries which are shared quite widely throughout the Committee.

It is a matter of considerable concern if defence disclosure is to be taken to the point that a defendant is required to set out in detail the reasons why he takes issue with the prosecution point by point. I entirely agree with the noble and learned Lord, Lord Ackner, that to assimilate in that way the criminal to the civil procedure runs a serious risk, in practice, of undermining what is common ground throughout the House—the principles of the burden and standard of proof. That cannot be right.

There is a further matter which will need to be addressed later. I mention it now because it arises directly out of the issues which the noble and learned Lord, Lord Ackner, raised. It is not clear to me—unless there is some passage in the Bill or the amendments with which I am not yet up to speed, so to speak—what prevents the prosecution from varying its case in the light of information obtained from the defence under the proposed requirement on the defence to set out in detail the reasons why issue is taken with the prosecution.

It seems to me, but here I obviously defer to practitioners with direct experience, that in the great majority of cases the crucial issue is likely to turn, certainly in many serious criminal cases, on the credibility of the witnesses. If the amendment of the noble and learned Lord, Lord Ackner, were acceptable to the Minister, that would meet both the concerns which are certainly shared on this side of the House and the concerns which the Royal Commission had very much in mind in its proposals, not going so far as the Bill does now.

As I said, I should like to thank the noble and learned Lord, Lord Ackner, for what he said, to endorse it and ask the Minister to consider it very seriously.

Baroness Blatch

I preface my response to the amendment by saying that of course I want to take away what has been said during the course of the debate and study it very carefully. But, as has been said, there is already a statutory requirement to supply certain information about the prosecution case. In respect of either way offences, the Magistrates' Courts (Advance Information) Rules 1985 require the prosecutor to provide either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings before a decision on mode of trial. In Crown Court cases, the prosecution must serve a notice of the prosecution case or a notice of transfer with documents containing the evidence on which the charges are based. Clause 5(2) refers to the provision of that information as a condition which must be met before the accused is required to provide a defence statement.

These amendments would accordingly require the prosecutor to prepare and give the accused an additional document containing information which, in some respects, duplicates what has already been given. I do not believe that it is necessary to provide that additional information in order to enable the accused to comply with the requirements of defence disclosure in Clause 5. It would place an additional and unnecessary burden on the prosecutor, and serve only to delay the delivery of justice.

The content of the prosecution case statement would be the same as in a preparatory hearing. Such a case statement would be required in all cases. But a preparatory hearing is designed only for potentially long or complex cases where the judge believes that substantial benefits might accrue. In those cases the benefits will outweigh the burdens imposed on both sides by the preparatory hearings regime. That cannot be said of the generality of cases.

As I said, I believe that the burden on the prosecution of complying with that requirement in all Crown Court cases, where the prosecutor has already served information about the prosecution case on the accused, would outweigh any benefit to the accused. But, as I have said, I shall take this matter away and read carefully what has been said. If we believe that the Bill is not right as presently drafted, I shall reconsider at the next stage.

Viscount Colville of Culross

If the noble Baroness intends to take this matter away, I shall be obliged if she will also consider the practicalities.

Under Clause 5, subsections (3)and (4), the accused has to give a detailed statement. I can envisage—not in the case that needs a preparatory hearing of the complicated kind to which the Minister referred, but in the ordinary straightforward case where it is to be dealt with on a plea and directions hearing—that the prosecution may say that the defence has not indicated the matters with which it takes issue and the reason why it takes issue because it has not known what it must take issue with. We therefore conduct a tiresome hearing which could have been obviated if the prosecution had been a little fuller in setting out what was the prosecution case in the first place and one would not then have to spend a great deal of time on PDHs dealing with something which, in one shape or form, is to be covered either by this amendment or that of my noble and learned friend Lord Ackner.

I shall be grateful if the noble Baroness will look at the practicalities. That process will happen day after day in the Crown Court unless we know exactly what the prosecution has to produce before the defence submits its statement.

Baroness Blatch

First, I repeat my willingness to take the matter away and think about it. However, it is important to distinguish between the words on the page of the amendments we started to discuss before bringing in Amendment No. 23 tabled by the noble and learned Lord, Lord Ackner. Amendment No. 24 imposes the same requirements as the prosecutor in a preparatory hearing. We are now talking about something less prescriptive but more informative. Without prejudice, I shall take the matter away and think about it.

Lord McIntosh of Haringey

This may have been a helpful 22 minutes. I am grateful to the noble and learned Lord, Lord Ackner, for linking his amendment with my three amendments. I had no right to separate them and he is right to say that the subject matter overlaps considerably. I am prepared to be convinced that his wording, apart from being shorter and simpler, is better than mine. I am prepared to be convinced also that it is not appropriate to bring in the wording from Clause 24, as my Amendment No. 24 does, but to use the simpler form of words that he proposed.

I am grateful also to the noble Viscount, Lord Colville. He points out, as the Minister recognises, the interlinking of the requirements for the prosecution and the requirements of the defence in subsection (4) of Clause 5. I shall beg leave to withdraw Amendment No. 21 and shall not move the other linked amendments, but, because of the statements of the Minister, it may be as well for me not to move Amendment No. 26 which seeks to restrict the disclosure obligations of the defence.

A balance must be kept between the prosecution and the defence. I suspect that the Minister recognises that the present wording does not reflect that balance. It is not prescriptive enough in terms of the prosecution and/or too prescriptive in terms of the defence. It does not achieve the equality of arms for which we are all looking.

I shall take up any opportunity that is available to discuss this matter with the Minister, her colleagues and officials. I am grateful for her offer and for the terms of her reply to the amendment.

Viscount Bledisloe

Before the amendment is withdrawn, perhaps I might suggest—as a person who has worked with crime, though not for a long time—that perhaps subsection (4) is over elaborate for simple cases. The Minister said that these amendments are asking the prosecution to do something complicated which is not necessary in simple cases. Perhaps the answer is that subsection (4) has gone too far for simple cases and one should revert to something more like the passage read out by my noble and learned friend Lord Ackner from the Royal Commission report for those simpler cases. It may be that then both the prosecution and defence could do simple things rather than complicated things in simple cases.

Lord McIntosh of Haringey

I am attracted by that proposition. The noble Viscount said more clearly what I intended to say when I said that I intended to throw Amendment No. 26 back into the melting pot together with the others.

If we are to achieve equality, it is right that we should seek to achieve it with a lower level of disclosure and a greater simplicity rather than by complicating matters on both sides. If that is to be achieved by simplifying the defence disclosure requirements rather than by complicating the prosecution disclosure requirements, that would be an admirable outcome. I am sure that the noble Viscount, Lord Runciman, would agree that that would be closer to the intention of the Royal Commission in its recommendations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Baroness Blatch moved Amendment No. 22:

Page 4, line 7, leave out paragraph (a).

The noble Baroness said: Amendment No. 22 is a minor amendment designed to remove an unnecessary provision in Clause 5(2).

Clause 5 provides that the accused need not make defence disclosure in Crown Court cases until he has been served with some information about the prosecution case under the existing statutory provisions. Subsections (2)(a) to (d) refer to those. If the case is transferred to the Crown Court for trial, the accused will in all cases receive one of the notices described in subsections (2)(b) to (d)—which, as it happens, contain more information than would have been provided under subsection (2)(a). Since Clause 5 only applies where the proceedings have been transferred to the Crown Court, and since the provisions described in subsections (2)(b) to (d) apply in all those cases, the reference in subsection (2)(a) to information given before transfer is unnecessary. I beg to move.

On Question, amendment agreed to.

Lord Ackner had given notice of his intention to move Amendment No. 23:

Page 4, line 12, at end insert ('together with a detailed statement of the facts relied upon and the inferences to be drawn therefrom,').

The noble and learned Lord said: I thank the Minister for agreeing to look at this matter again. Speaking for myself, I am not in favour of boxes being ticked. I do not believe they give much information and the amendment is designed to clarify the position of what the case is all about. One does not discover what the case is all about if one has a little box which says 'mistake', 'provocation' or whatever may be the short epithet used to describe the nature of the defence without any detail. In those circumstances I shall not move the amendment.

[Amendment No. 23 not moved.]

[Amendment No. 24 not moved.]

Baroness Mallalieu moved Amendment No. 25:

Page 4, line 22, at end insert ('unless in the opinion of the court it is not in the interests of justice for him to do so.').

The noble Baroness sand: Clause 5(3), as at present drafted, makes a requirement: 'The accused must give a defence statement to the prosecutor'.

The amendment adds the words, 'unless in the opinion of the court it is not in the interests of justice for him to do so'.

I know that I speak for both sides of the legal profession when I say that there is real concern about the danger of this legislation saddling criminal practitioners with a mass of procedural requirements which, in some cases, everyone agrees, are neither desirable nor necessary. Nor are they in the interests of justice. The purpose of the amendment is to enable the court in an appropriate case to cut this procedure short—in other words, to cut away the bureaucracy.

In a very simple, straightforward case where the accused, for example, has in interview made his defence plain, it would surely be a nonsense if the judge could not say, 'This is a case in which the interests of justice do not require the time, trouble and expense'—and I stress, usually public expense—'of all the following steps being taken'.

There will also be cases—they are ones which trouble me greatly—where the accused is unrepresented. In some instances the judge may well take the view that it is not in the interests of justice that an unrepresented accused should be required to undertake an important form of criminal proceeding. There may also be cases where an accused person is represented but may be under a disability or, for some reason, unable to give coherent instructions. In such a case a judge may take a similar view.

The amendment is intended simply to deal with those cases where the elaborate procedure which is required to be followed can be short-circuited. A judge who thinks it appropriate will have the ability to do so. I hope that the noble Baroness will feel that the amendment is a helpful addition to the legislation. I beg to move.

Baroness Blatch

First, the policy underlying the Bill is that the issues in dispute between the two parties should be narrowed and clarified as far as possible before the trial starts. That will promote the efficient and effective management of the trial. it would be inconsistent with that principle to create exceptions to the requirement to give a defence statement.

Secondly, the amendment provides no procedure for the court to consider the question whether it is in the interests of justice to give a defence statement. I suppose that it would be necessary for the accused to apply to the court and for there to be a hearing. There would be nothing to stop the accused making an application in all cases to be tried in the Crown Court. The number of additional hearings required could bring the business of the courts to a standstill. Because the amendment would insert an additional stage into the disclosure process, it would delay the start of the trial. That is also undesirable.

If the prosecutor comments at trial on the failure to give a defence statement, it will be for the jury to decide what inference may be properly drawn. In so doing it will have the benefit of the summing-up by the trial judge in which he can direct what inference it is proper to draw. If it really is not in the interests of justice for the accused to have given a defence statement, that is bound to affect what inference it is proper to draw, so even in those cases I believe that the Bill does provide. For the reasons that I have given I hope that the amendment will not be pressed.

Viscount Colville of Culross

The noble Baroness really should think again. I quite see that, in the generality of cases she has been talking about, she may be right. But she should consider the possibility of exceptions. For instance, if the issue is going to end up as one of fitness to plead, which is not all that uncommon, there is no point in the defence trying to produce a defence statement. Indeed, it may be impossible to get one because the hypothesis is that the defence will be unable to put forward anything sensible. Therefore, it will be impossible to comply with the subsection in Clause 5.

I believe that there are circumstances where the matter could be brought before the Crown Court on a perfectly simple application or even as a mention, which would enable this provision to be dispensed with because of the particular circumstances of the case. That will not be possible as the clause is currently drafted because it is mandatory and universal. I do not believe that it should be.

Lord Harris of Greenwich

As regards the point made by the noble Baroness, Lady Mallalieu, can the Minister say what will happen if a defendant is not legally represented? Who is going to draw the attention of the accused to the fact that he has to produce a defence statement to the prosecutor? Who has the obligation of informing the unrepresented defendant what his responsibilities are? Some of these people are at best semi-literate. It is not at all clear how some of these people are going to undertake the task.

Baroness Blatch

My Lords, the defendant would be represented in court or would represent himself. If a statement of defence were not made it would be for the judge to advise the jury what inference should be drawn. If it was because the defendant was incapable or inadequate for one reason or another, and they were good reasons, that would be a matter on which the judge should advise the jury. I shall read this debate very carefully, as I always do, between the stages of the Bill.

The amendment adds another judicial stage to the process and would cause undue delay. I am saying that in a particular case where there is a disadvantage there is a mechanism within the Bill and the procedure to deal with it.

Lord Williams of Mostyn

Does the Minister agree that that mechanism comes in too late? This is not a partisan point. The criticism which the noble Baroness, Lady Mallalieu, put forward is based—as everyone who has ever practised in a criminal court recognises—on very real problems. The Minister says that an unrepresented defendant is not represented because he is representing himself. I have heard better points in my time. An unrepresented defendant is at a gross disadvantage. Prosecutions in the Crown Court or the magistrates' court are always conducted by professionally qualified people. The burden of this suggestion is one of economy and efficiency of practice. The judge who is controlling the fairness of the procedure should be entitled to waive this condition. In other words, it is trusting the judiciary, in a minority of cases, to waive the absolute necessity which the Bill presently requires.

Viscount Bledisloe

The noble Baroness is in fact saying that here we have an absolute obligation to give a defence statement. Some people will be unable to do it or will have good reason for not doing so. When the judge comes to sum up, he will say, 'Members of the jury, you should not take into account at all the fact that there is not a defence statement because it would have been impossible for the defendant to give one and, indeed, it would have been ludicrous to have required him to. But, unfortunately, the statute gave me no power earlier to tell him not to bother'. So he is saying, 'Parliament has said that this is obligatory, but it is a ridiculous thing not to do and therefore, members of the jury, do not take it into account'. I suggest to the noble Baroness, with the greatest respect, that that is not very good legislation.

Baroness Blatch

I have given my answer and I have also given an undertaking to read this debate very carefully. If my answer is insufficient and I believe that something has to be done, that follows the whole process of proceeding in this way through Parliament. I repeat what I said earlier. There is no procedure provided in the amendment for the court to consider the question of whether it is in the interests of justice to give a defence statement. I suppose therefore that it would be necessary for the accused to apply to the court and for there to be a hearing. I am trying to suggest that the mechanisms that would have to accompany these amendments would simply add and overlay more procedures. However, I shall consider very carefully all that has been said.

7 p.m.

Baroness Mallalieu

I am grateful to the Minister for what she has just said. She has heard from four noble Lords who are either practitioners or former practitioners, one of whom is now a member of the judiciary, about the real problems to which the absence of such a provision is likely to lead. If the Minister feels, on reflection, that there should be some way of saving time and money and ensuring that justice is done by making such a small amendment, I hope that the Home Office will take that step—even if it requires some additional amendments to provide the mechanism, which could be done in relation to the preparatory hearing stage although perhaps it is more advisable that it happens earlier.

If the Minister does not feel that she can introduce such an amendment I am bound to tell her that I shall have to return to this matter at a later stage. I should be grateful if the Minister could look carefully at what has been said by a number of noble Lords who know a great deal about these matters. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

The Deputy Chairman of Committees

I must inform the Committee that if Amendment No. 27 is agreed to, I cannot call Amendment No. 28.

Baroness Blatch moved Amendment No. 27:

Page 4, line 43, leave out from ('section') to end of line 10 on page 5 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Clause 5, as amended, agreed to.

Clause 6 [Voluntary disclosure by accused]:

[Amendment No. 29 not moved.]

Baroness Blatch moved Amendment No. 30:

Page 5, line 18, leave out from ('it') to end of line 26 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

The Earl of Courtown

My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.5 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.