HL Deb 18 December 1995 vol 567 cc1480-504

House again in Committee.

Clause 7 [Secondary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 31:

Page 5, line 33, at end insert ('and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue').

The noble Lord said: In moving Amendment No. 31 I shall speak also to Amendments Nos. 36 and 44. These amendments are inextricably linked to the amendments that we have already dealt with relating to primary prosecution disclosure and defence disclosure. We now move on to the issue of secondary prosecution disclosure in Clause 7.

The problem with Clause 7 is that it is very narrowly drafted. It creates only two gateways for disclosure of material to the defence. One is, as we have seen, material which the prosecution considers undermines its case. The second is material which the prosecution considers may assist the defence case as disclosed in the initial statement of defence. Those are the two criteria for primary and secondary disclosure. They are the only bases on which the court can order disclosure of unused material which the defence requests to see.

The problems with those criteria are, first, there may be material which is relevant but which the prosecution, in all good faith, does not realise could be of assistance to the defence although the defence recognises that it is of assistance; and, secondly, if there is a change in the defence case—and there is some provision for a change in the defence case—there is no obligation on the prosecution to disclose information which is relevant to the new defence case. More seriously, the court cannot order its disclosure, even if it recognises that the change in the defence case is reasonable and should not be commented on adversely.

Then there is the problem of the relevant material which does not fall into those two categories. There could be other lines of investigation which are pursued and then abandoned. There could be trails which the defence realises could lead to important evidence or to a genuine defence which might not otherwise be apparent.

All of those are cases where it is necessary to have a wider requirement for prosecution disclosure. I reiterate that it is not our intention to increase the burdens on the prosecution, merely to make the defence disclosure, and its effect on the trial, more effective than it would be under the Bill as drafted.

Fortunately, there is a precedent for this. They may not be the terms used by parliamentary draftsmen, but in the case of Keane in 1994, to which the Minister has already referred this evening, the Lord Chief Justice used words which we have adopted in Amendments Nos. 31, 36 and 44. Because wording in legislation is so boring, and because the Lord Chief Justice is certainly not boring, I hope that the Committee will forgive me if I read what he said, because it contains a lot more oomph than one normally finds in Bills. He said: 'and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue'.

I know that we do not use the words 'sensible' or 'fanciful' in legislation, but the noble and learned Lord the Lord Chief Justice made his point. He pointed out that the gateways were far too narrow, that they could well be widened, that secondary disclosure by the prosecutor was an important element in the just and effective conduct of the trial, and that such disclosure would not be an obstruction to the judicial process. I do not believe it can be said that these criteria, since they have been spoken by the Lord Chief Justice himself, can possibly be an obstruction to the criminal law process. We believe that they, or something like them, perhaps couched in more diplomatic terms, will be a valuable addition to the Bill. I beg to move Amendment No. 31.

Baroness Blatch

Amendment No. 31 would expand Clause 7(2)(a) so that the prosecutor was required to disclose to the accused any prosecution material which had not previously been disclosed to the accused, and might be reasonably expected to assist his defence as disclosed by the defence statement, and could be seen on a sensible appraisal by the prosecution to be relevant, or possibly relevant, to an issue in the case, or which raised, or possibly raised, a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue.

As the amendment is drafted, the prosecutor is not required to disclose material unless it satisfies all three elements. This is because the amendment is introduced with the word 'and' rather than 'or'. Because the existing test in (ii) is more restrictive than the new test in (iii), material which may be relevant but which does not assist the defence will not need to be disclosed. The same is true of Amendment No. 36 in relation to the description of prosecution material which the accused may apply to have disclosed.

Amendment No. 44 differs from the other two in beginning with the word 'or' rather than 'and'. It has the effect of creating two separate conditions for the test of prosecution disclosure under the continuing duty in Clause 9. If either condition is satisfied—if the material may reasonably assist the defence or may be relevant or raise a new issue—the prosecutor will be required to disclose it. This considerably widens the test for prosecution disclosure in the circumstances in which Clause 9 applies. I think this is what the noble Lords want to achieve in relation to Clauses 7 and 8 also. Of course, it is not achieved by those amendments. If that is their intention there are problems with that. The test of relevance to an issue in the case is considerably wider than the tests for prosecution disclosure currently in the Bill. The prosecutor would be required to disclose considerably more material than had been disclosed to the accused by way of primary prosecution disclosure under Clause 3. As the Bill is currently drafted, the accused receives the bulk of prosecution disclosure before he makes defence disclosure. If the amendments had their intended effect, he would receive the bulk after defence disclosure rather than before.

Furthermore, the new test is the same as the current test for prosecution disclosure as set out by the Court of Appeal in the 1994 case of R. v. Keane. It requires the prosecutor to disclose in effect all material relevant to an issue in the case, whether or not it has any bearing on the defence actually chosen by the accused. As I explained earlier in the debate on the amendments to Clause 3 tabled by the noble Lord, Lord Airedale, this imposes heavy burdens on the police and prosecution relating to the disclosure of material which may be completely irrelevant to the actual defence. In the light of this, I hope that the noble Lord will agree to withdraw the amendments.

Lord McIntosh of Haringey

The Minister has given a very strange answer. We were told in reply to earlier amendments that the risk we ran in expanding primary disclosure by the prosecution was that there would be no point in secondary disclosure because everything would have been disclosed at the first stage. We are now told that to expand secondary disclosure will, in some sense that is not understood, endanger primary disclosure. I do not believe that the two can possibly be made to fit together.

As was recognised by your Lordships in a wide-ranging debate, with a lot of well-informed contributions, primary prosecution disclosure and defence disclosure should, as far as possible, be balanced. We did not agree about how they should be balanced, whether they should be balanced by placing increasing burdens on the prosecution to match the burdens on the defence, or whether the burdens on the defence should be reduced to match the prosecution. That is a matter which remains for discussion.

The issue of secondary prosecution disclosure is closely related to the two issues that we have already discussed and are themselves inextricably linked. Surely it is necessary to have a wider definition of what is relevant at the secondary disclosure stage, if only because at that stage it is more apparent both to the defence and the prosecution, because of the nature of the disclosures that have already taken place, what is relevant. Yet, curiously, there is very little change in the definitions of what is relevant and what should be disclosed. The Bill provides that the criteria are the material which the prosecution consider undermines its case, which comes from the primary prosecution disclosure, and the material which the prosecution consider may assist the defence case, which the noble Lord, Lord Campbell of Alloway, thought was not different in any significant way from the first criterion.

What is proposed here is nothing very dramatic. We say that things may happen both in the understanding of the defence and prosecution and the development of investigations, or understanding of the relationship between one investigation and other investigations. To that degree, it means that the criteria should be more relaxed. We do not propose to put in dreadfully revolutionary words. They are the words used by the Lord Chief Justice himself in the case of Keane.

I acknowledge that technically the Minister has a point in suggesting that we should have used the word 'or' rather than 'and' in the first two amendments. On that basis, I do not propose to press the three amendments in this group to a Division. However, the point is still valid and is related to the earlier discussions which it has been agreed will take place. I hope that those discussions will be widened to consider the criteria for secondary prosecution disclosure as well as the earlier matters that are now on the table. On that basis, I beg leave to withdraw Amendment No. 31.

Amendment, by leave, withdrawn.

Baroness Mallalieu moved Amendment No. 32:

Page 5, line 36, at end insert—

('() The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see.).

The noble Baroness said: Amendment No. 32 seeks to insert a discretion into Clause 7, which deals with secondary disclosure by the prosecution. Having dealt with the situation in which the prosecutor must make disclosure, the amendment inserts in sub-paragraph(iii): 'The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see.'

I make clear to the noble Baroness that this is in the nature of a probing amendment. I preface my remarks by saying that the amendment is prompted at the particular request and as a result of very strong representations made to me by senior members of the Bar who prosecute in serious criminal cases.

There is acute concern that this piece of legislation, as presently drafted, may have the opposite effect of what is intended. Instead of releasing the Crown from the burden of much of the disclosure which they are presently required to make, prosecutors may find themselves saddled with a different burden which will adversely affect their ability to prosecute cases to proper conviction. What they are required to do is to look at the unused material at the time of primary disclosure, after the defence statement, and then, as I understand it, throughout the trial from the defence point of view.

A prosecutor will have to keep the unused material under constant review to ensure that nothing which assists the defence is withheld during the course of the trial. That task will, in many serious criminal cases, be a vast one. It is almost standard practice now in an investigation which, for example, concerns a murder, for a large number of statements to be taken initially from witnesses that ultimately are never used by the Crown. There may be many thousands of pages of unused material consisting of both statements and exhibits. The prosecution in a murder case in which a number of different people are accused—and this is an everyday occurrence at the Central Criminal Court and other major court centers—may as a result of the defence statement under those provisions have to keep in mind a number of different defences.

Perhaps I may give a hypothetical illustration. In a murder case in which there are five separate defendants, a killing may have resulted from a fight. One defendant may have served a defence statement indicating an alibi as his defence; another, self-defence; a third that he was present but did nothing; a fourth that he was present and involved in the fight but lacked any knowledge of a weapon which had been used by someone else to inflict the fatal injury; and the fifth may even indicate provocation. It may be that when the prosecutor looks through the unused material at the time of primary disclosure, he sees nothing in it which, in his view, helps him; and nothing in it, so far as he can see, which helps the defence either. The course that he may well wish to adopt, and which is done day in day out at present in criminal trials, is to say to the defence: 'You may see anything you wish. You may make an appointment at the police station where you will be shown into a room where the exhibits are by the officer'. That happens day after day. Junior counsel and solicitors, one or the other, visit the station by appointment and sit reading through the material. If anything is required in the way of a copy, then it can be done at the expense of the defence.

If the prosecutor takes that course now and takes it following this Bill reaching the statute book, he will know that he cannot later be accused of failure to disclose. He cannot later be accused of having missed something. He cannot face a successful appeal later on the basis of non-disclosure, when a proper conviction may be overturned. Above all, he will not have to keep taking his eye off the ball when he is prosecuting the case; in other words, constantly trying to review the case and the evidence from the point of view of the defence. He may take that course; and, indeed, does so at present. He must be able to take that course, if he sees fit, when this legislation reaches the statute book.

I said that it is a probing amendment. It raises a matter which should possibly appear in the Bill both at the stage of primary disclosure and, as I indicated in the amendment, at the stage of secondary disclosure; or the noble Baroness might consider enshrining that discretion in the code of practice in paragraph 10.1.

At Second Reading of the Bill, I and other noble Lords sought reassurance from the Minister that prosecuting counsel would retain a discretion at both those stages to let the defence have access to additional material, if they chose to do so. When the noble Baroness dealt with the matter at Second Reading (at col. 505 of Hansard for 27th November 1995), her reply was: 'My noble friends Lord Alexander of Weedon and Lord Campbell of Alloway referred to the discretion of the prosecutor to make further disclosure than is required. The Bill does not prevent the prosecution going further than is required under Part I, but I am not sure what circumstances would justify the prosecution wanting to show the accused all the material the police have gathered. I do not see how it would improve the current arrangements. After all, the prosecutor is under an obligation to make available all material which, in his opinion, could undermine his case and also to make available to the defence material which could support the defendant's case, as disclosed. The prosecutor is required to certify that both obligations have been met'.

I should like to see that discretion enshrined either in the Bill or, at the very least, in the code of practice rather than leaving it to prosecution counsel to trawl through the pages of Hansard for guidance in situations like the one I have outlined. It would be an irony if a Bill, which was born of a desire to help the prosecution avoid burdens of disclosure about which the police, quite understandably, were complaining, resulted in the substitution of a burden on the prosecution which adversely affected their ability to conduct prosecution cases effectively and efficiently.

To prosecute a case of the nature that I have indicated—by no means an unusual occurrence—usually means that the Crown may have a junior counsel to assist; each of the defence is likely to be separately represented, often with two counsel. Each of those pairs of counsel have nothing to do but to devote their attention to their individual client, while the prosecutor has to prosecute a number of different cases. To require him to do so, as this legislation does at the moment, without making it clear that there is a way in which he can ease his burden, is to place a burden on him which can only distract him from doing his job; that is, in essence, to prosecute the case.

I ask the noble Baroness to say that the discretion, which she kindly indicated on Second Reading would remain, can be enshrined in some part of the Bill, either on the face of the statute or in the code of practice. I beg to move.

Baroness Blatch

I hope that the only thing that divides the noble Baroness and myself is a misunderstanding about what the Bill provides for. The amendment provides expressly that the prosecutor may disclose prosecution material to the accused if he thinks it is in the interests of justice to do so. But there is nothing in the Bill as currently drafted which prevents the prosecutor from doing that and a prosecutor is under a common law duty to secure a fair trial. It is worth recording that the prosecuting counsel, for example, are bound by the Bar's code of conduct which sets out that: 'Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case'.

The code of conduct for Crown prosecutors provides in the introduction that: 'Fair and effective prosecution is essential to the maintenance of law and order'.

In the section headed 'General Principles', the code stipulates that: 'The duty of the CPS is to make sure … that all relevant facts are given to the court',

and that, 'Crown prosecutors must be fair'.

The Bill sets out only what the prosecutor is specifically required to do for the purposes of this scheme of disclosure. Thus, for all the reasons I have given—an obligation under the Bill to disclose, consistent with the requirements of the Bill and also an obligation to abide by the code by which all the key agents are bound—I believe that the amendment is not necessary. As always, of course, I shall go away and read Hansard carefully following this stage of the Bill.

Baroness Mallalieu

I am in part much reassured by what the noble Baroness has said. Nevertheless, I ask her that when she looks at the draft code of practice—and she indicated again today that it is a draft—to consider whether it ought to be made clear in paragraph 10.1, which deals with the disclosure of the material to the accused, that nothing in the code or in the legislation restricts that ultimate discretion. It would be helpful to those who are practitioners. I am grateful to her and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 33:

Page 6, line 2, leave out ('believes') and insert ('concludes').

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 34 and 35:

Page 6, line 4, leave out ('need') and insert ('must').

Page 6, line 9, leave out from ('section') to end of line 16 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Application by accused for disclosure]:

[Amendment No. 36 not moved.]

8.30 p.m.

Baroness Blatch moved Amendment No. 37:

Page 6, line 28, leave out ('or').

The noble Baroness said: These are minor amendments designed to ensure that the procedure in Clause 8 under which the accused may apply to the court for the disclosure of additional prosecution material works properly.

Clause 8 provides for the accused to apply to the court for the disclosure of undisclosed prosecution material which he has reasonable cause to believe might reasonably be expected to assist the defence disclosed. Prosecution material is defined in terms of material which is in the possession of the prosecutor or which is in the possession of the police and which the prosecutor has inspected. The definition does not include material which is in the possession of the police and which the prosecutor has chosen not to inspect. But the accused needs to be able to apply to the court in relation to all material which has been retained and which is in the possession of the prosecutor or the police.

The definition of prosecution material in Clause 8 needs to be expanded to cater for this. These two amendments achieve this be referring not only to material which the prosecutor either has in his possession or has been allowed to inspect, but also to material which the prosecutor is entitled to inspect—which encompasses all material retained by the police. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 38:

Page 6, line 28, at end insert— ('() which is in the possession of a third party and which may contain information which is relevant to the offence or to the offender or to the surrounding circumstances of the case.').

The noble Lord said: This amendment is relatively straightforward. It is based on the possibility of conflict between a third party and the public interest. Quite a lot of material that is relevant to a case could be in the possession of a third party, and there is a natural tendency for the third party to have an interest in keeping it confidential. 'The amendment provides that information in the possession of a third party should be disclosed if it is in the third party's possession and the public interest in disclosing it overrides the third party's confidentiality interest.

That may mean that the defence has to inspect the document to assess whether it contains information which is material. This is an addition to the provision in Clause 8(3) for the definition of prosecution material as being that, 'which is in the prosecutor's possession, or…which he has been allowed to inspect in pursuance of a code operative under Part II'.'

I may not in the time available fully have appreciated the nuances of all of the code of practice. If that is the case and I have got this wrong, I apologise. But I have seen nothing in the code of practice that allows the concern expressed in Clause 8(3)(b) to override the third party's confidentiality interest. Clearly, in the interests of justice and the proper prosecution of a criminal case, it is important that there should be no let-out on information that is relevant and is in the possession of a third party. I beg to move.

Baroness Blatch

I hope again that there is some misunderstanding. The amendment would require the prosecutor to disclose, on a court order, material in the possession of a third party which he may never have seen. It is not defined as material in his possession or material which he has been allowed to inspect. I simply do not see how or why the prosecutor can be expected to disclose material about which he knows nothing.

Further, if the accused wishes to obtain material held by a third party, a means of doing so already exists. He may apply to the court for a witness summons under Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The third party must attend court and produce any document specified in the summons, although he can apply for the summons to be set aside.

Also, there is something inherently objectionable in defining material held by third parties as prosecution material. This amendment does not define what is meant by a third party, so it presumably includes everyone who is not a party to the proceedings. Why should a doctor, a lawyer or a social worker who have had nothing to do with the prosecution be regarded as possessing material which ranks as prosecution material for these proceedings? Why, for example, should a witness for the defence in other proceedings which have concluded be regarded as possessing material which ranks as prosecution material for these proceedings?

Finally, the House will recall that in the debate at Second Reading I gave notice that the Government intended to bring forward amendments as soon as we could on the whole subject of third party disclosure. That is still our intention. Among other things, we intend to reform the procedures for the accused to obtain material from a third party. In the light of that, I hope that the amendment will not be pressed.

Lord McIntosh of Haringey

Again that is a curious answer. The Minister relies on the definition of the phrase 'prosecution material' to suggest that the kind of material to which I refer is not prosecution material. But in replying to the amendment moved earlier by the noble Lord, Lord Airedale, she made it clear that in her view there was nothing significant about prosecution material. The noble Lord wanted different wording but the Minister thought there was nothing sinister in the existing phrase and that it did not mean, as the noble Lord thought, material collected for the purpose of the prosecution. It could be material which is relevant to the case but has not been collected for the purpose of the prosecution.

The Minister also gave examples of what she considered to be material in the possession of a third party. She gave the example of doctors and lawyers. I recognise that there could be examples of conflict between the professional rules of some of those people and the interests of the court. Indeed, I believe this is the issue at the moment between President Clinton and the Senate inquiry into Whitewater, namely, what is confidential information between a lawyer and his client.

I accept that it will be very difficult to find a form of words which resolves that conflict in all circumstances. Nevertheless, it is a lack in the Bill as drafted that there is no specific provision for access to information that is in the possession of a third party.

I do not believe it is relevant that the prosecutor may not know about the material. If it comes to the ear of the accused that there is material which somebody else holds and which may let him off, even though it is not part of the investigation—it could, for example, be a confession by somebody else in a totally different case—then surely that information, which has not been included in the prosecution material as the Minister defines it, should be available to the defence. I rather suspect that a number of the miscarriages of justice cases that have been overturned in the period running up to and following the Royal Commission rely on precisely that point. Here is material which is relevant to the case but does not fall within the definition prescribed in the Bill.

I am very interested in the Minister's remarks about the 1985 Act and other rules. I shall of course read them very carefully before deciding what to do at a later stage. This is not an issue on which, in the absence of confirmation that is firm on one side or the other, I wish to seek the opinion of the Committee. However, it is an issue that is quite live and deserves further attention. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 39:

Page 6, line 30, at end insert (', or (c) which falls within subsection (3A). (3A) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it.').

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 40 and 41:

Page 6, line 32, leave out ('believes') and insert ('concludes'). Page 6, line 34, leave out ('need') and insert ('must').

On Question, amendments agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Continuing duty of prosecutor to disclose]:

Lord McIntosh of Haringey moved Amendment No. 42:

Page 6, line 41, leave out from ('it') to end of line 43.

The noble Lord said: This amendment seeks the simple removal from page 6, line 41 of the Bill of the words: 'and…before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned'.

It relates to a very important consideration indeed. Clause 9 is concerned with the continuing duty of the prosecutor to disclose. Subsection (2), which is the substantive subsection in Clause 9, refers to the duty of the prosecutor to keep material under review. However, that is constrained by subsection (1), which states that it applies only between the time of compliance with Section 3—that is the primary disclosure. I now realise that I should have tabled an amendment to take out the words 'purports to' as well, but I failed to do so. But the duty stops at the time of acquittal, conviction or a decision not to proceed with the case.

I turn back to what I said on a previous amendment. A very substantial number of the miscarriages of justice which rightly gave rise to public concern and then to setting up the Royal Commission related to evidence which became available after conviction. Because there was no procedure for continuing obligations, those miscarriages of justice have had to be dealt with in a most unsatisfactory way. There have had to be appeals to the Appeal Court and to the Home Secretary for directions for the matter to be brought before the Court of Appeal again and those procedures have taken not months but years—in some cases many years—before they resulted in a correct conclusion. Some of them have not yet come to a conclusion.

This amendment states that there is a continuing responsibility on the prosecutor after acquittal or conviction, or after a decision not to proceed. It may be asked: who is the prosecutor who can do that? As was pointed out earlier, the prosecutor is an authority—in other words, the prosecutor is, in effect, for this purpose the Crown Prosecution Service. Surely it is not impossible for the Crown Prosecution Service to have a continuing obligation to review matters which might cast doubt on a previous conviction.

In legislation over the past two years we have dealt with other aspects of the miscarriage of justice. I suspect that this is an issue that has been overlooked. It would in fact be economical and efficient to continue the obligation for review on the prosecutor rather than resort to the remedial measures which are provided for in other legislation.

If my interpretation is wrong, I shall listen, as always, to what the Minister says. But it seems to me that there is at least a possibility or probability that this legislation is not in line with other legislation which has been reviewed by this Chamber in recent years. I beg to move.

8.45 p.m.

Baroness Blatch

I hope that I am able to allay the noble Lord's fears. In particular, this measure needs to be taken in conjunction with other legislation.

Clause 9 imposes a continuing duty on the prosecutor to keep prosecution material under review and to disclose it if he thinks that it might undermine the prosecution case. Subsection (1) sets out when the duty starts and when it ends. It starts when the prosecutor makes primary prosecution disclosure. It ends when the proceedings are concluded either with an acquittal or a conviction, or because the prosecutor abandons the case.

This amendment removes the end point. It means that the duty to keep material under review and disclose any material which might undermine the prosecution case continues for ever. The prosecutor must keep all his case files open even though the case has ended, and must keep them all under review in case something happens in future which leads him to conclude that material not disclosed during the trial now might undermine the prosecution case—if indeed there was still a case to undermine. He would have to do this even if the accused was acquitted. That is an impossible task for the prosecutor to perform.

As the Bill is drafted, the disclosure requirements in Part I end when the trial ends. If there are subsequent proceedings, for example, because the accused has appealed against conviction, the Court of Appeal will have access to all papers in the case and will be able to decide for itself whether prosecution material should have been disclosed. Even if there are no subsequent proceedings, if the prosecutor becomes aware that undisclosed prosecution material might have rendered a conviction unsafe, he will take whatever action is appropriate, such as bringing the material to the attention of the Criminal Cases Review Commission. But that is very different from requiring him to keep all case files open and all cases under review for ever, as this amendment would require. As I have said, it is impossible for the prosecutor to do that.

In the light of that explanation about taking this Bill in conjunction with other measures that are appropriate if someone finds himself in that position, I hope that the noble Lord will not press his amendment.

Lord McIntosh of Haringey

I readily accept that the amendment is defective in the sense that it provides for indefinite retention and disclosure of material after acquittal or after a decision has been taken not to proceed. It is quite difficult to ask the Minister to try to draft something which provides for the duty to continue only after conviction.

I am still worried about this matter. It seems to me that there are still elements of the prosecution case whose importance only becomes apparent when new evidence becomes available after conviction. We might think about having a restriction—a closing date ending after a decision has been made not to go to appeal or after all rights of appeal have been exhausted. That might be a solution to the problem. But I cannot believe that there is any doubt that much of the justified concern about miscarriages of justice has been about cases in which the new material becomes available which may or may not under the rules of the Court of Appeal lead the case to be referred to the Court of Appeal; or may or may not under the legislation for the criminal cases review authority lead it to be considered by that authority; but which might be hindered if the information available to the prosecution at the time before conviction was no longer able to support or refute it.

I feel that there is an issue here which needs further consideration. It may be that it is a matter to which we shall have to return. For those who are in prison and believe that they have been wrongly convicted, the idea that when files are closed there is no continuing duty on the prosecution to help them seek justice is a deeply unpleasant and damaging thought. We have to bear in mind, as I said earlier, the concerns which have properly existed about miscarriages of justice and we have to make sure that we do not land up in the same position in which we found ourselves before the Royal Commission and the legislation following the Royal Commission: that there are technical obstacles to the retention and disclosure of evidence which is relevant to an appeal whether or not the information was gathered before the conviction took place.

As I said, I shall read carefully what the Minister said. I ask leave to withdraw the amendment, but I cannot say that I am entirely satisfied.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Baroness Blatch moved Amendments Nos. 45 and 46:

Page 7, line 32, leave out ('believes') and insert ('concludes'). Page 7, line 34, leave out ('need') and insert ('must').

The noble Baroness said: I have already spoken to Amendments Nos. 45 and 46 and, with the leave of the Committee, will move them en bloc. I beg to move.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Faults in disclosure by accused]:

Baroness Mallalieu moved Amendment No. 47:

Page 7, line 39, leave out ('the accused') and insert ('either party').

The noble Baroness said: Clause 10 deals with faults in disclosure by the accused and provides sanctions where the accused fails either to give a statement or to produce a statement within the specified period; or where he sets out inconsistent defences in that statement or at trial puts forward a defence which is different from that set out in the defence statement given. There are additional provisions in relation to alibis.

For the convenience of the Committee, when moving Amendment No. 47 I shall speak also to Amendments Nos. 48, 49, 51, 52, 55 and 56. I do not pretend that they are perfectly drafted. I can see at once that there are a number of clear errors. But I hope that they will flag for the Minister a point of principle which needs attention when she and her department consider what has been said in the course of the Committee stage.

The present Clause 10 provides for sanctions to be applied where the accused fails to give a statement, does so late, gives one which contains inconsistent defences or, at trial, advances a different defence from that contained in the defence statement. I do not quarrel with any of that. However, as presently drafted, the Bill contains no equivalent provisions for the prosecution. If the object is to be even-handed as between the defence and the Crown; if it is to ensure that the scales of justice are evenly balanced or—to borrow a phrase used by my noble friend Lord McIntosh earlier in this Committee stage—to provide 'equality of arms', then there must be sanctions which apply also to the Crown for similar transgressions. If it is right to provide the power for there to be adverse comment where the defence depart from the defence as indicated in the defence statement at trial, surely such sanctions must also be available in relation to the Crown.

These amendments propose simply to put the prosecution and defence on an equal footing and to ensure that similar sanctions apply to the failures of the Crown. The sanctions provided under this section are that the court, or any other party with the leave of the court, may make adverse comment about them; and that that the court or jury may draw such inferences as seem proper in deciding whether or not the accused is guilty.

I hope that the noble Baroness will feel that, in the light of what was said in particular by a number of noble Lords at Second Reading, this is a point that requires attention even though the amendments may not be in perfect form. I beg to move.

Baroness Blatch

I can understand why Members of the Committee tabled these amendments. On the face of it, the sanctions in Clause 10 appear to be rather one-sided. An inference may be drawn if the accused fails to comply with the requirements of defence disclosure in several respects, but no inference may be drawn from any failure by the prosecutor. I shall try to explain why the provisions in Clause 10 are as they are.

The Royal Commission on Criminal Justice recommended that the accused should be required to disclose information about his case. It foresaw the possibility of the accused attempting to evade the requirement in some way. And so it recommended sanctions in the form of the drawing of inferences in certain circumstances. Those were putting forward a defence at trial without giving any indication in advance; or relying on a different defence at trial from the one disclosed earlier; or disclosing in advance a number of inconsistent defences (recommendation 136). The Government accepted that recommendation, and Clause 10(1)(a), (c) and (d) gives effect to it. These amendments depart from the Royal Commission in applying sub-paragraphs (a) and (d) to both parties to the proceedings, and removing sub-paragraph (c) altogether.

In relation to sub-paragraph (c), the effect of removing it is that it will be open to the accused to set out any number of inconsistent defences in a defence statement, so as to trigger the maximum possible disclosure of additional material by the prosecutor, whether or not he intends to rely on any of those defences, and to do so without any sanction. The Royal Commission disapproved of that abuse and so do we. The noble Baroness will correct me if I am wrong, but I seem to recall the noble Lord, Lord McIntosh, saying on an earlier occasion, during the debate on the humble Address, that in so far as the Bill followed the Royal Commission it would have his support.

In relation to the other amendments, the Bill does not provide for an inference to be drawn if the prosecutor fails to serve any information about the prosecution case, or serves information late, or departs from his case. There are good reasons for that. The prosecutor is already required to serve a notice of the prosecution case or a notice of transfer under existing statutory provisions. If he does not do so, two consequences follow. One is that the accused is not required to make defence disclosure in Crown Court cases at all, and no inference can be drawn. That is the effect of Clause 5(1)(c). The second, and more likely, consequence is that the case will not be allowed to proceed. Similarly, if the prosecutor serves the information late—that is, has not done so before the appropriate time for defence disclosure—the accused is not required to give a defence statement. That is because the time limits for these procedures will link defence disclosure to the disclosure of unused material by the prosecutor rather than to the service of the prosecution case. The prosecutor will need to ensure that he complies with the other statutory requirements in relation to the service of his case in good time.

The position is a little different in relation to a departure from the prosecution case. In the light of new information after pre-trial disclosure has taken place, the case for the prosecution may change. If there is new evidence against the accused, the prosecutor is under a separate and long-standing duty under the existing law to serve it on the accused so that he is not taken by surprise at trial. If the prosecutor does not do that, the accused may apply for an adjournment. If there is new prosecution evidence or a change in the prosecution case, the defence case may change. But the Bill already caters for that in Clause 10(4), by requiring the court to have regard to the extent of the difference from the defence statement and the reason for it, before deciding whether to comment or draw an inference. If the change is a consequence of something done by the prosecution, it is unlikely that the court will allow an inference to be drawn. On the other hand, if the change results simply from a desire by the accused to surprise the prosecution, and the prosecution case itself has not changed, it is more likely that the court will allow an inference to be drawn.

I have spoken at some length to the amendments and hope that, in the light of that lengthy explanation, the amendments will not be pressed.

Baroness Mallalieu

Before the noble Baroness completes her response, can she say what is the sanction under the Bill as presently drafted if the Crown departs at trial from the case that is set out in its case statement? I cannot see any such sanction, despite what the noble Baroness indicated.

Baroness Blatch

I mentioned some of the sanctions, though they are not sanctions as such. For instance, the case may be adjourned or it may be abandoned; the defence can challenge as to why the case departed from the statement and why the prosecution is not following the lines it set out in its statement of case. I gave some arguments against it. Perhaps the noble Baroness will read what I said, just as I shall read carefully what she said. If necessary we can return to the matter.

Baroness Mallalieu

I shall certainly read what was said and I am grateful to the noble Baroness for indicating that she will look at what was said on this side also. As presently drafted, as the Minister conceded when she began to deal with this series of amendments, the clause appears to be one-sided. I am not entirely satisfied that what she said allays my fears. However, I shall look at it and return to the matter in due course if the noble Baroness does not. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 and 49 not moved.]

9 p.m.

Baroness Blatch moved Amendment No. 50:

Page 7, line 42, leave out ('specified period') and insert ('period mentioned in section 5(7)').

On Question, amendment agreed to.

[Amendments Nos. 51 and 52 not moved.]

Baroness Blatch moved Amendment No. 53:

Page 8, line 12, leave out ('specified period') and insert ('period mentioned in section 6(3)').

On Question, amendment agreed to.

Baroness Mallalieu moved Amendment No. 54:

Page 8, line 24, after second ('court') insert ('following the making of an application made in the absence of the jury').

The noble Baroness said: The purpose of this amendment is to set out what shall happen when a party makes an application to the court for leave to comment adversely in the circumstances set out in Clause 10. The words which it is sought to insert in Clause 10(3)(a) are, 'following the making of an application made in the absence of the jury'

If such an application were to be made by the Crown to comment adversely on, for example, a change of tack in the defence case and that application were to be made in the presence of the jury, but to be rejected by the court, then clearly prejudice would result which might well result in the trial itself being aborted. So all this amendment seeks to do is to clarify the procedure that is to be followed whenever there is a suggestion that any other party, as opposed to the court itself, will either wish to comment or seek to draw inferences in the course of the trial. I beg to move.

Baroness Blatch

I am not sure that this amendment achieves the intended effect. Let us examine what will happen in practice. The accused will advance a defence in court which is different from a defence in the defence statement. After he has finished, the prosecutor will turn to the judge and ask for the jury to be sent out. Some time later the jury will return. Either the trial will carry on as if nothing had happened or the first thing the prosecutor will do will be to comment adversely on the fault in disclosure by the accused. It will not be very long before juries realise that they are being sent out because the prosecutor intends to seek permission to comment on such a fault. They will know that there has been some fault in disclosure by the accused, which they are not allowed to know about. It is not difficult to imagine the subconscious effect on the jury as they ponder their verdict. This would defeat the purpose of the amendment.

In my view it would be better for the prosecutor to comment in open court and for the judge to direct the jury in his summing-up about the inference they may -properly draw. That seems to be fairer to the accused than the consequence of this amendment.

Baroness Mallalieu

I do not know whether the noble Baroness and I are at cross-purposes. She indicated, as the subsection does, that it will be necessary for the prosecutor to seek the leave of the judge before making any comment and indicated that a prosecutor would ask for the jury to go out, in following my amendment. I am bound to say that I would have thought that most prosecutors would have taken that course any way, given the likely prejudice that will result if the application is heard in front of the jury. However, it seems to us to be worth while making it plain on the face of the statute that that is the procedure.

It is of course right that when juries are sent out they quickly become aware that matters of law are being dealt with. It is abundantly clear that many juries are aware that matters of admissibility of evidence, for example, are being dealt with. There seems to be no way around that. I cannot believe that it is right, in effect, to place the matter in front of the jury at the outset when prejudice is certain, rather than to say that it will be possible for them to speculate if they are kept out while the legal argument takes place.

The normal rule is that matters of law are for the judge. When those have to be dealt with, and if there is any prospect of the jury's view of the facts being contaminated by the argument, the jury go out. All that we seek to do with this amendment is to state on the face of the statute that that will be the normal procedure in dealing with what is in effect a matter of law for the judge to determine—in other words, whether the circumstances of this case mean that the provisions of Clause 10 and the adverse comment should be permitted. When the noble Baroness comes to look at what I have said, I hope she will feel that there is some merit in the suggestion I make. With that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 and 56 not moved.]

Baroness Blatch moved Amendment No. 57:

Page 8, line 36, leave out subsection (6).

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Public interest: court to review orders]:

Lord Williams of Mostyn moved Amendment No. 58:

Page 8, line 45, at end insert—

('(IA) In summary proceedings the duties set out in this section shall fall on the clerk and 'the court' shall be construed accordingly.

(1B) The clerk to the justices to whom subsection (IA) applies shall be present on all occasions when the court makes an order under sections 3(6), 7(5), 8(4) or 9(8) and should see all relevant information.').

The noble Lord said: I hope that this is an amendment of practical utility, which deals with the problems which will undoubtedly arise in the magistrates.' courts. They are entirely different to the Crown Courts, where, in most large centres these days, as is well known, there is a liaison presiding judge who is likely to be present on many occasions in a given year. The problem in the magistrates' courts is that the magistrates are not full time and therefore are not likely to be in a position to carry out this work of review.

We have looked at the present clause and commend, of course, the provision of continuous review, but inquire and offer remedy as to who can actually keep matters under review. We suggest that it is fruitless to simply leave it to the magistrates' courts. Everyone who has practised in them knows that on different occasions the Bench will be differently constituted. In the smaller courts it is quite impossible to have the same constitution for one set of reasons, and in the larger courts for different sets of reasons, and again problems arise.

Therefore this is a mechanical amendment to bring about what it seems the Government desire; namely, that there shall be effective, continuous review. On that basis we have suggested that it is better for the clerk to the court to have the specific responsibility of continuous review rather than' the court, which can consist of different trios of magistrates on different occasions. We suggest to the Committee that it is quite impossible to expect a Bench of magistrates, perhaps over a period of nine months, 12 months or more, to keep the matter under constant and continuous review. The clerk is much more likely to be able to carry out the work efficiently, consonant with the spirit of the clause as we understand it. I beg to move.

Baroness Blatch

The decision whether it is in the public interest to disclose sensitive material to the accused in criminal proceedings has so far been reserved to a judge or magistrate. Given the difficulty and importance of that decision, I think it is right that it should he taken by a judge or magistrate. The effect of this amendment is that in some circumstances that decision will be taken by a clerk to the justices. Although the clerk may be very experienced in the law, and may advise the justices, he has no judicial authority to determine questions of law or to determine guilt or innocence. I simply do not believe that he is the right person to decide whether sensitive material should be disclosed.

This amendment would also set the authority of the clerk higher than the authority of the justices themselves. The original decision whether disclosure is in the public interest under Clauses 3, 7, 8 or 9 is made by the court, rather than by the clerk. Clause 11 is concerned with a review of that decision. If the clerk decides on reflection that the court has got it wrong, he will order disclosure. There will be no opportunity for the court itself to consider the matter.

The noble Lord may have in mind the difficulties that can arise when a magistrates' court is asked to rule on the disclosure of sensitive material which clearly demonstrates the guilt of the accused. In such cases they are likely to take the view that the public interest in protecting the source of the information must prevail. The material will not be disclosed and will not be part of the prosecution case against the accused. But they will be aware of it when they come to decide whether the accused is innocent or guilty. This problem does not arise in the Crown Court because the jury will not know about sensitive material in these circumstances.

This is a problem which the courts already have to grapple with. As the law stands at present, magistrates who hear an application for the non-disclosure of sensitive material have a discretion in the interests of justice to order that the case should be tried by a different Bench. That was the decision in a judicial review earlier this year, R v. South Worcestershire Magistrates, ex pane Lilley. With respect, that seems to me to be the proper course, rather than providing for such decisions on disclosure to be taken by the clerk to the justices. This is not simply an administrative matter; it is a matter of justice, and the clerk to the justices is not an appropriate person to whom such work should be devolved.

Lord Williams of Mostyn

I entirely understand the reasoning which the Minister put forward. Unfortunately, it is not reasoning directed to the problem which I sought to identify. There are problems when a Bench of magistrates looks at material which points to guilt which is then not disclosed. I entirely agree with the Minister that it is appropriate in those circumstances that justice should be seen to be done. Therefore, an alternative Bench of magistrates must try the substantive issue of whether or not guilt is proved. However, that is not my point.

My point—I must return to this because I believe that many magistrates throughout our countries of England and Wales share my concern—is whether, when one speaks of the court keeping under continuous review, the Minister intends that that court—namely, three magistrates—should have the same constitution on every occasion. If not, the system cannot work. I ventured to suggest on an earlier occasion that there will be endless problems in the magistrates' courts, which try significantly more than 95 per cent. of criminal cases in this country. Those significant problems will be added to unless the Minister thinks carefully about this.

I think that there is a sensible argument that questions of public interest disclosure should always be tried by a Crown Court judge rather than by magistrates. If that is not to be allowed for in the Government scheme of things, how will it work? Are the three magistrates to be identical? If not, the work of review is extremely difficult, if not impossible.

I am grateful for the Minister's response, but it is not the whole cause of my concern. I entirely take the point that it may not be seemly or appropriate that a clerk to the justices could overrule his own Bench. What one wants is efficiency in the continuity of review. That is why we tabled the amendment. We simply wanted to alert the Government in a spirit of good nature and seasonal good will, which is always found—certainly from me.

Baroness Blatch

I can concur with that. The noble Lord has suggested that this is a problem. Perhaps I could go away and think about the nature of the problem and whether there needs to be a response to it. If I need to, I shall contact the noble Lord between the two stages of the Bill. If not, I have no doubt that the noble Lord will return to this at a later stage.

Lord Williams of Mostyn

I am most grateful for that approach which reciprocates ours. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 59:

Page 9, line 10, leave out ('and the accused').

The noble Baroness said: I shall speak also to Amendment No. 60. The amendment to Clause 11, and the related amendment to Clause 12, are designed to remedy a deficiency relating to applications to the court for rulings on whether it is in the public interest to disclose material.

The current procedure for such applications derives from the 1993 case of Davis, Johnson and Rowe. Depending on the level of sensitivity of the material, the prosecution either tells the defence it is applying for a disclosure ruling, indicating the category of material in question; and the defendant has an opportunity to make representations to the court at an inter partes hearing; or if the material is more sensitive, tells the defence it is applying for a disclosure ruling, without indicating the category of material in question; and the application is heard ex parte; or in a highly exceptional case, makes an ex parte application to the court without giving any notice to the defence. Those procedures have worked well and we intend to embody them in rules made under Clause 12.

As the Bill stands at present, if the court decides, having reviewed the matter, that it is no longer not in the public interest to disclose certain material, it must make an order for disclosure and inform the prosecutor and the accused of its order. But a difficulty would arise if the material were so sensitive that the prosecutor initially made an ex pane application and the court decides on review that the material must be disclosed. In such cases the prosecutor may want to abandon the proceedings without the accused knowing that an ex parte application had been made, so as to protect the source of the material. Clause 11 does not allow him to do that because the accused must be informed of the order, which would defeat the purpose of making an ex parte application in the first place.

Accordingly, Amendment No. 59 to Clause 11(4) provides that, if the court does order disclosure, it must inform the prosecutor but not the accused of its order. That will give the prosecutor an opportunity to decide whether or not to abandon the proceedings. If he decides to continue with the proceedings, it will of course be necessary to disclose the material to the accused, and to inform the accused of the order made by the court.

Amendment No. 60 to Clause 12 completes what is needed by providing for rules of court also to be made governing the practice and procedure to be followed in relation to an order made under Clause 11(4). I beg to move.

9.15 p.m.

Lord Williams of Mostyn

I can feel the ghost of the late, revered Franz Kafka sitting on my shoulder. I see that the noble Lord, Lord Lyell, points behind me, but it is not visible at the moment. I dissent from the proposition, as I believe most criminal practitioners would, that ex parte applications to courts work well at the moment. They do not. They cause a good deal of trouble and concern, not least to the judiciary. Secrecy is the enemy of justice, and secrecy, if it is required, should be dealt with in very small packets indeed.

I suggest that there is no difficulty in the present circumstances, with the present draft Clause 11, in making a notification to the accused that the court now no longer believes that it is not in the public interest to disclose material. To put it at its kindest, I find severe internal contradictions in the Government's approach. This again, if I may ask the Minister to do this, is an occasion when there should be some rethinking of whether an accused's rights must always be subordinate, and whether or not the balance is not in danger significantly of slipping too far away from the accused's interests, which, in fact, should be coincident with the interests of the community as a whole.

Baroness Blatch

The noble Lord has me at a disadvantage, in that some considerable thought has been given to these changes. I have no reason to dissent from the system not working well at the moment. I bow to the noble Lord's considerable experience in these matters. Given that we have another stage of the Bill, I invite the Committee to accept the amendment now, and no doubt the noble Lord will return to the issue at a later stage of the Bill.

On Question, amendment agreed to.?

On Question, Whether Clause 11, as amended, shall stand part of the Bill?

Lord McIntosh of Haringey

I shall speak briefly on Clause 11 stand part at the behest of the noble Viscount, Lord Colville of Culross, who, I believe, has been in discussions with the Minister on the point to which I am now going to refer. He is concerned that there are many cases before the courts in which the particular case is, or may be, part of a larger inquiry or investigation. At the beginning of the case it may appear that the case is separate from the larger inquiry, but, as investigations proceed, it becomes clear that the inquiry is larger and wider, and that material in the hands of the police may not have been collected as part of the original investigation, but may become relevant to the case as it develops.

The noble Viscount has suggested that there should be amended wording to what I thought I took down as paragraph 7.4 of the code, but I do not believe that that can be right. The wording he suggests is: 'Relevant material should include any other material which derives from activities of the police or investigating authority in the course of investigations which led to the prosecution'. The noble Viscount has left to write a summing-up speech in a case now before his court and therefore I am not able to consult him on the detail. The Minister knows of it as a result of the meetings which she has had with him. I do not wish to hold up the Committee at this stage but I ask that the Minister gives further consideration to the case which the noble Viscount made to her and considers whether he or she should propose further amendments at a later stage of the Bill.

Baroness Blatch

I am grateful to the noble Lord, Lord McIntosh, for pressing the point on behalf of the noble Viscount, Lord Colville. Not only have we been in correspondence but we have met, and I thought that he was satisfied about the matter.

All material that police have is to be given to the prosecutor and therefore there is no discretion to hold back material. Clause 11 requires the court to keep under review whether it is still not in the public interest to disclose material which it has ordered should not be disclosed. This requirement applies at all times after the court has ordered that it is not in the public interest to disclose certain prosecution material and before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case. If the court at any time no longer believes that it is not in the public interest to disclose material it shall so order. That continuing duty is also a feature of the current law which is preserved by the Bill.

The particular point on which I believe the noble Viscount was satisfied was that of certification. There will be formal certification of the police having handed the material over and of the prosecution handling it in a way that is consistent with the code of practice.

Clause 11, as amended, agreed to.

Clause 12 [Rules of court]:

Baroness Blatch moved Amendment No. 60:

Page 9, line 21, at end insert ('or in relation to an order made under section 11(4) (whether or not in pursuance of an application)').

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Clause 13 agreed to.

Clause 14 [Common law rules as to disclosure]:

[Amendments Nos. 61 and 62 not moved.]

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Williams of Mostyn

Perhaps I may inquire of the Minister what she says the effective consequence of Clause 14(1) will be.

Baroness Blatch

It may be better if I speak to the whole of Clause 14 because I understood that it was to be generally opposed. It provides for common law rules as to disclosure, with one exception, no longer to apply.

The rules of common law which were effective before the appointed day and which relate to the disclosure of material by the prosecutor will no longer apply regarding things falling to be done after the relevant time in relation to an alleged offence; that is, when the accused pleads not guilty in a summary trial or when the proceedings are transferred to the Crown Court.

However, this does not affect the common law rules as to whether disclosure is in the public interest. These relate to the consideration by the court of different aspects of the public interest in relation to the disclosure of certain information. For example, the court may balance the public interest in not disclosing the identity of a police informant against the public interest in ensuring that the accused receives a fair trial, in considering whether particular material needs to be disclosed.

Members of the Committee opposite do not believe that Clause 14 should stand part of the Bill. If it were removed the existing common law rules on disclosure would continue to apply alongside the statutory scheme created by this Bill. We would then have two disclosure systems; the current, unsatisfactory system, which was roundly condemned by the Royal Commission and which is based on developments in case law which themselves depend on common law rules, and the statutory scheme created by this Bill.

I believe that that would create immense problems for the courts in interpreting the law and for parties to criminal proceedings in applying it. The statutory scheme would generate its own case law, which would run parallel and in conflict with the case law developed under the existing scheme. That would be profoundly unsatisfactory.

Subsection (1) provides for the rules of common law which were effected by the appointed day and which relate to the disclosure of material by the prosecutor no longer to apply regarding things falling to be done after the relevant time in relation to an alleged offence.

Lord Williams of Mostyn

I am grateful to the Minister but perhaps I may repeat my question. What do the Government say is the effective consequence of Clauses 14(1)(a) and (b)? I ask that in particular because, when my noble friend Lady Mallalieu spoke to Amendment No. 32, the Minister was at pains to say that the common law duties of prosecutors relating to disclosure would continue. I believe that she read out the ethical duties of a member of the Bar and the ethical duties of a member of the Crown Prosecution Service. That being so, my inquiry is simple—and I respectfully repeat it. What is specified to be the effective consequence of Clause 14(1)(a) and (b)?

Baroness Blatch

I do not understand the point which the noble Lord is trying to make. Clause 14(1) states: 'Where this Part applies as regards things falling to be done after the relevant time in relation to an alleged offence, the rules of common law which … were effective immediately before the appointed day, and … relate to the disclosure of material by the prosecutor, do not apply as regards things falling to be done after that time in relation to the alleged offence'. What is the specific point which the noble Lord seeks to make on this issue?

Lord Williams of Mostyn

I am sorry that I have not made myself clear and I am sure that it is my fault. What will be the consequence of Clauses 14(1)(a) and (b)? I cannot make my question more specific.

Baroness Blatch

I am not sure that I can give an answer which will satisfy the noble Lord. Perhaps he will allow me to take away his question and return to it between now and Report stage.

Lord Williams of Mostyn

Of course, and I am most grateful.

Clause 14 agreed to.

The Earl of Courtown

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-eight minutes past nine o'clock.