§ 3.8 p.m.
§ The Minister of State, Home Office (Baroness Blatch)
My Lords, I beg to move that this Bill be now read a second time.
One of the most important responsibilities of any government is to ensure that their criminal justice system is fair, efficient and effective. It should be fair towards all those affected by it, whether as defendants or as victims and witnesses. It should be efficient in 463 focusing on the issues that really matter at trial, and it should be effective in ensuring that the innocent are acquitted and the guilty are convicted.
The Bill now before your Lordships is intended to meet those aims. It is an important piece of legislation which tackles one of the most pressing and difficult problems in our criminal justice system and which makes a number of other improvements to the procedures by which the system operates. It implements proposals made in three consultation papers which the Government issued earlier this year. More generally, it represents the Government's response to a number of matters raised by the Royal Commission on Criminal Justice in its report in 1993.
The main purpose of the Bill is to reform the law on prosecution and defence disclosure.
It may help your Lordships if I say a little about the history of the matter. The current disclosure requirements, which derive from the common law, reflect the decisions of the courts in a series of cases over the past five years or so. As the noble Lord, Lord Irvine of Lairg, explained a week ago during the debate on the Address, the context of the current arrangements is a series of high-profile miscarriage of justice cases in which convictions were overturned because of the non-disclosure of prosecution material which pointed away from the defendants. This reduced public confidence in the criminal justice system in general, and in the police and prosecuting authorities in particular, and it is understandable that the courts saw a need to extend the duties of disclosure owed by these authorities.
What has happened, however, is that these duties have been extended much further than anyone may have intended. The result is a system which not only protects the innocent but also makes it more difficult to convict the guilty. The current law requires the prosecutor to disclose to the accused anything which might possibly be relevant to an issue at the trial, whether or not it has any bearing on the defence which the accused relies on at trial. It is open to the accused, if he so wishes, to seek the disclosure of large volumes of material in an attempt at least to delay the onset of the trial, and if possible to uncover some sensitive material which the prosecutor cannot disclose and thereby cause the abandonment of the proceedings. And this is what has happened in practice. In short, the current disclosure regime is neither fair, nor efficient, nor effective.
This analysis represents not only the view of the Government. It represents also the view of the Royal Commission on Criminal Justice, which was established on the day that the Court of Appeal quashed the convictions for murder of the Birmingham Six, with a remit to examine the effectiveness of our criminal justice system. The Royal Commission concluded that the disclosure regime needed reform. It recommended the creation of a statutory scheme for prosecution and defence .disclosure in stages, underpinned by subordinate legislation or a code of practice. The Government agree with that general approach. But our detailed proposals differ from the Royal Commission in two important respects. First, the test for prosecution disclosure recommended by the Royal Commission was 464 very wide-ranging. If anything, it would have imposed even more burdens on the prosecution than the current requirements. Our scheme focuses on the effect of unused material on the prosecution case and on the defence case when that is known. Secondly, its proposals would require only a general indication of the nature of the defence case and would not in practice contribute to narrowing the issues in dispute before the trial. Our scheme requires the defence to provide more detailed information so as to clarify in advance what is really at issue between the two parties.
Turning to the proposals, the disclosure scheme in Part I of the Bill would require the prosecutor to disclose to the accused unused material which the prosecutor thought might undermine the prosecution case. At the same time he would give the accused a schedule of unused material which was not sensitive. In response the accused would disclose the general nature of his case, the matters on which he took issue with the prosecution, and the reasons for that. Defence disclosure would be mandatory in the Crown Court, but voluntary in magistrates' courts, where most cases are straightforward. In response to defence disclosure, the prosecutor would disclose any additional unused material which might assist the defence that had been disclosed. If a dispute arose about whether there was any other material which might assist that defence, it would be resolved by the court. The Bill provides for the possibility of an inference being drawn if the accused does not comply with the defence disclosure requirements. As to sensitive material, the Bill retains the current procedure whereby the court rules on whether it is in the public interest to disclose such material. However, the prosecutor would not need to bring such material before the court unless he thought it undermined the prosecution case or unless it might reasonably assist the defence disclosed by the accused.
Part II requires the Home Secretary to prepare a code of practice for the actions of the police in relation to unused material for prosecution disclosure. It sets out the matters which may be included in the code of practice, including what material is to be preserved by the police. As now, the police would make the material available to the prosecutor, with whom decisions on disclosure would rest. Although the code of practice is for the police, others conducting criminal investigations would have to have regard to it. The Bill requires the Home Secretary to lay the code before Parliament before it comes into effect. Your Lordships will naturally be interested in the detailed contents of the code of practice. We intend to publish a draft of the code as soon as possible.
During the debate on the Address last week, the noble Lord, Lord Rodgers of Quarry Bank, asked me to explain how the provisions in the Bill differed from the proposals in the consultation paper which we issued in May. The Bill adopts the principles and framework set out in that document, but we have made some important changes on points of detail as a result of consultation. First, the consultation paper envisaged that the schedule of unused material should not be given to the defence. As a result of the representations we received, we are now persuaded that it should be given to the defence. If 465 the prosecution has material which tends to prove the innocence of the accused, it is essential for the defence to be aware of it. The defence may be better able to appreciate the significance of a seemingly insignificant item on the schedule. Passing on the schedule is accordingly a safeguard against inadvertent non-disclosure. However, we are concerned to ensure that the provision of the schedule is not abused by defendants who know themselves to be guilty and who are looking for material from which to construct a defence. The effect of the Bill is that the prosecutor will not be required to disclose material on the schedule until the accused has disclosed his defence, and has justified requests for material on the schedule by reference to that defence.
Secondly, the consultation paper proposed that defence disclosure should include in all cases the names and addresses of witnesses the accused intended to call. We now believe that this proposal would not offer sufficient benefits in practice. As a result, the Bill does not require the disclosure in advance of the names and addresses of defence witnesses, except where the defence is alibi, where it is already required in law. I should also make it clear that decisions on what is to be disclosed lie with the prosecutor under our scheme and not with the police, and that the prosecutor will have access to all the material obtained by the police during an investigation. This was always our intention, but it is true that some of those who responded drew a different conclusion from the consultation paper. In response to an undertaking I gave last week, I have placed in the Library of the House a list of the names of the persons and organisations who responded to the consultation paper.
We believe that this scheme will prove more effective in convicting the guilty. We also believe that it will not prejudice the acquittal of the innocent. This is a point which I know will be of interest to your Lordships. For the first time there will be a statutory duty to disclose unused material which the prosecutor believes may undermine his case. The accused will be able to gain access to material which assists the defence he has disclosed. Defence disclosure will focus the minds of the police and prosecution on unused material which might assist that defence. If such material exists, there will be a statutory duty—enforceable by the court—to disclose it. The Bill provides for a police officer to certify to the prosecutor that he has complied with his duties under the code of practice. Similarly, the prosecutor will be under a duty either to disclose material which meets the test for disclosure or else to certify that there is no such material. We believe that these safeguards will be sufficient to ensure that the accused receives a fair trial.
I turn now to the other provisions in the Bill. Parts III and IV make two important improvements to pre-trial procedures, giving effect to the proposals in the consultation paper on pre-trial hearings published by the Government in July. Part III enables a judge to order a preparatory hearing in a long or complex case if he thinks that substantial benefits may accrue. The preparatory hearing would be similar to those held in cases of serious or complex fraud. The main features of 466 the scheme are as follows. The judge may order either party to provide a statement of its case. He may exercise a range of powers to narrow the issues in dispute and to assist the jury's understanding of the case. For example, he may make a ruling on the admissibility of evidence or on any other point of law. Such rulings may be appealed against. There are sanctions if either side later departs from its case or fails to comply with a requirement imposed at the hearing.
Part IV creates a power for a judge to make a binding ruling on the admissibility of evidence or other point of law in any case at a pre-trial hearing. This power is distinct from anything that happens at a preparatory hearing under Part III. The judge may vary the ruling later if there is a change in the relevant circumstances. There is no appeal against the ruling. Taken together, these measures will encourage the better preparation of cases and the better conduct of the trial. Our aim is to make trials more efficient, and less stressful and time-consuming for jurors and witnesses.
Part V makes three minor but useful reforms to magistrates' courts procedures so as to make them more efficient. These take up certain recommendations of the review of magistrates' courts procedures in 1992.
Part V also provides for the accused to give an indication of plea before a decision is taken on whether a case which is triable either way is tried in a magistrates' court or in the Crown Court. This was one of the options in the consultation paper on mode of trial which the Government issued in July. Its effect will be to remove the present illogicality whereby defendants are committed for trial to the Crown Court, with the delay and extended anxiety for victims and witnesses which that can cause, when, given the opportunity, they would have been prepared to indicate their guilt at the magistrates' court. It will also enable magistrates to make their decisions on mode of trial in the full knowledge of how the defendant intends to plead. We believe that this change will be to the benefit of all concerned.
Part V also amends the law in respect of juveniles on remand awaiting summary trial or transfer. On their first and subsequent appearances they may be remanded in custody for up to eight days. However, frequent court appearances can be disruptive for young people and not in their best interests. On their first appearance the maximum remand period will remain eight days but the Bill provides that on subsequent appearances they may be remanded for up to 28 days, as with adults, rather than up to eight days as at present. The courts will remain free to set shorter remand periods than 28 days on subsequent appearances if they consider it desirable. Defendants will be free to make bail applications if circumstances change. We shall issue guidance to remind courts and local authorities of the need to consider the welfare of the child and to be alert to changes in circumstances that may justify an application for bail.
Part VI contains a number of miscellaneous and general provisions. First, it provides the possibility of a retrial of a case which resulted in an acquittal if the acquittal has been tainted by a conviction for interfering with witnesses or jurors in that case. The procedure is that the court where the interference conviction occurs 467 must certify that there is a real possibility that the original acquittal would not have happened but for the interference. It is then for the High Court to make an order quashing the acquittal so that a retrial can take place. The certifying court and the High Court would need to be satisfied that a retrial would not be contrary to the interests of justice.
The new procedure should discourage those who would seek to escape conviction by interfering with the administration of justice. It implements a recommendation of the Royal Commission on Criminal Justice. The Royal Commission was concerned about jury-nobbling at the original trial. The provision in the Bill goes wider and extends to cases where witnesses have been intimidated. This is because, since the Royal Commission reported, Parliament has created a new offence of witness intimidation in the Criminal Justice and Public Order Act 1994.
Part VI also enables a judge to impose reporting restrictions on false or irrelevant allegations made in a speech in mitigation. This is intended as a measure of last resort to protect witnesses and victims from the publication of unfair and unsupported imputations on character which they are unable to challenge because of the privilege attaching to court proceedings. It should reduce the distress experienced by the victims of such allegations. This also implements a recommendation of the Royal Commission on Criminal Justice.
Part VI also provides for custody time limits to operate up to the start of the trial proper, as was the intention of Parliament in making provision for them in the Prosecution of Offences Act 1985, and not merely up to arraignment. It will ensure that the limits continue to operate effectively in cases where—as is now the usual practice—the defendant has been arraigned at a plea and directions hearing long before the start of the trial.
Most of the provisions of the Bill, including those on disclosure, apply also in Northern Ireland. In Northern Ireland the law on disclosure is similar in most respects to that in England and Wales, and the difficulties to which the present arrangements may give rise are potentially at least as serious in Northern Ireland as elsewhere. My right honourable friend the Secretary of State for Northern Ireland accordingly issued a consultation paper in similar terms to the one issued by my right honourable friend the Home Secretary, and he has concluded that the scheme embodied in the Bill is well suited to the circumstances of Northern Ireland. Schedule 1 of the Bill contains a number of modifications necessary to tailor the provisions of the Bill to the legal context of Northern Ireland.
There is much in the Bill to occupy the time of this House in the coming months. It is right that I should give notice at this stage that the Bill now before your Lordships does not contain all the material which the Government would like it to contain. Apart from any minor and technical amendments which may be necessary, we intend to table amendments while the Bill is before this House on the following subjects.
First, the work we have done in preparing to implement the transfer for trial provisions in the Criminal Justice and Public Order Act 1994 has 468 identified some areas where legislation would be helpful in improving the efficiency and clarity of the new procedures. The Bill offers an opportunity to make those improvements.
Secondly, although the Bill provides for binding rulings before the trial on points of law, it does not provide for such rulings in respect of applications for children to give evidence by way of a live television link or by means of a video recording. It often happens at present that child witnesses are led to believe that they will be able to give evidence in one of these ways only to find on the day of trial that they must appear in the courtroom itself. That is distressing for the child. It would be better if such applications could be resolved in a binding way before the trial so that the child and those concerned with the child's welfare know what to expect, and we are currently considering how that might be achieved.
Thirdly, the Bill at present contains no provisions on the difficult subject of the disclosure of material held by third parties, for example, local authority social services departments. We invited views on this in the consultation paper on disclosure. That exercise confirmed the scale of the problem, but unfortunately no ready-made solution emerged. But the problem needs to be addressed and we aim to bring proposals before your Lordships in the Bill as soon as we can.
In respect of all the amendments we have in mind, I hope that we shall be able to table them in good time to allow your Lordships to consider them properly before they are debated.
I have tried to give as full a picture as I can of the provisions of the Bill. As I said, it is an important measure which is intended to make our criminal justice system fairer, more efficient and more effective. I commend the Bill to the House, and I look forward to hearing what your Lordships have to say about it.
§ Moved, That the Bill be now read a second time.—(Baroness Blatch.)
§ 3.27 p.m.
§ Lord McIntosh of Haringey
My Lords, the House will be grateful to the Minister for her introduction to this complex Bill. Our starting point in the consideration of the Bill is the same as that of the Government. We believe that the presumption of innocence is fundamental to our system of justice and that, subject to that principle, our criminal law system must ensure as far as possible that the guilty are convicted and the innocent are not. That means that there must be a proper balance between the rights and responsibilities of the prosecution and the defence—the "equality of arms" enshrined in Article 5 of the European Convention on Human Rights. It means that we support the principle of the Bill in introducing a statutory framework for disclosure of information both by the prosecution and the defence. It was after all a Labour Government who passed the Criminal Justice Act 1967 which first required disclosure by the defence, including the names and addresses of witnesses, when the defence is an alibi.
469 It is common ground between us that there have been too many cases like the Guildford Four and that of Judith Ward where verdicts were unsafe because the prosecution or the police had concealed relevant evidence, but also where defence lawyers demanded unreasonable amounts of documentation without disclosing the line the defence was going to take. It was in response to those miscarriages of justice that the Government set up the Royal Commission headed by the noble Viscount, Lord Runciman. The Royal Commission proposed the regime of primary prosecution disclosure, defence disclosure and secondary prosecution disclosure which forms the basis of the Bill. We support those proposals and any reforms which, in the words of the policy statement on crime agreed at the Labour Party conference this year produce,a fast, fair and firm criminal justice system".The Minister gave some of the history of the changes in law and practice over recent years. She described properly the miscarriages of justice which led to the setting up of the Royal Commission. She described the subsequent judicial rulings which led to an extension of the requirement on the prosecution to disclose documents relevant to the defence.
The Minister said a little, not much, about the consultation paper issued in May this year and referred to the changes that have taken place as a result of the consultation in the period between the consultation paper and the Bill. I am grateful to her, first, for correcting some of the statements that I made in the debate on the Queen's Speech last Monday. They were based on a very hasty reading of the Bill and a much less hasty reading of the consultation paper. I am grateful that the Minister has now made clear the important respects in which the Bill is different from, and I believe better than, the original consultation paper. But your Lordships' House is a revising Chamber and much requires to be done in the detailed consideration of the Bill. The fact that my speech will consist largely of criticisms of the detail does not in any way detract from our support for the principle of the statutory framework which underlies the Bill.
Our first problem with the Bill is that it is in the wrong order. Part II of the Bill is about criminal investigations, and Part I, which is concerned only with the conduct of the case after a plea has been made, is in a sense dependent on what happens in Part H. Part I sets out in great detail—some might say too much detail—the toing and froing of information between prosecution and defence. However, Part II—it is, after all, the basis on which a decision has to be taken on prosecution material which has not previously been disclosed—relies almost entirely on a code of practice which we have not seen. I am grateful to the Minister for saying that we shall see the code of practice as soon as possible. However, I have to repeat what I said to her in a letter last week. We cannot seriously consider Part II of the Bill, and therefore much of Part I of the Bill, unless we have seen a draft code of practice because we cannot know what will be in it. Our duties as a revising Chamber will be severely restricted unless the code of practice is available in good time before the Committee 470 stage. By "good time" I suggest at least 10 days to enable us to put down considered amendments to that part of the Bill.
In Part II, Clause 16(1)(a) provides, as the Minister rightly said, for full disclosure of material obtained by the police to the prosecution. Clause 16(1)(e) provides for a written compliance statement. However, the remainder of Clause 16, and Clause 17, provide, as so often in this legislation, for different cases to be treated in different ways and by different dates. In other words, there is a great deal of flexibility for the Secretary of State to make the code of practice provide what he wants.
We welcome the statement in Clause 18 that the code of practice will be laid in draft before Parliament. However, we shall require a great deal of detail about the code of practice. We shall need to know whether it includes a signed schedule of the information contained. We shall need to know whether it is, and in what sense it is, a duty to produce the material by those responsible, and what sanctions are proposed in cases of non-compliance. We cannot consider Part I or Part II properly without sight of that material.
Having said that, I return to the more explicit provisions in Part I of the Bill. The most important provision lies in Clause 3(1)(a) which refers to,any prosecution material which has not previously been disclosed"—that is the reference to Part II—and which in the prosecutor's opinion might undermine the case for the prosecution".That is a critical phrase in our consideration of the Bill. It appears to us, the Law Society, the Bar Council, Liberty and Justice that that provides too much possibility for the prosecution to exercise varying judgment, and judgment which might be too restrictive as regards what should be disclosed to the defence. We do not believe that that phrase is compatible with the overriding obligation on the prosecution envisaged in the Royal Commission report. Although we accept that there must be, for reasons of practicality, some restriction on the sheer volume of documentation which is copied and passed to the defence, we do not believe that it is necessary for the provision to be restricted in that way. For example, it would be perfectly possible to restrict disclosure to inspection of documents rather than to large scale copying of documents.
This question remains in our minds. What is the prosecution material which has been disclosed to the defence before Clause 3 comes into effect; that is, after the plea? What is left? Surely, disclosure by the prosecution should be in the context of a proper statement of case by the prosecution, and the evidence which the prosecution will rely on. That is the basis of the preliminary hearings referred to in Part III of the Bill and should be included in Part I.
I come to the schedule of the material which is to be included with the primary prosecution material. In Clause 4(1)(a) the Bill only talks about a document indicating the nature of the material. The Minister, who was good enough to write to me in the course of the past week, used the word "schedule" as she did in her 471 speech this afternoon, referring to material listed in the schedule. That gives me some basis for hoping that the schedule will be consistent with the Royal Commission's finding that it should be possible from a detailed list of material for the defence to identify those documents which will be helpful in the preparation of the defence case. It follows that after defence disclosure it will be able to obtain such material.
I turn to the question of defence disclosure. We accept the first part of the Bill which states that it shall be a general statement of the line of the defence. However, we start to worry when we see phrases like,the matters on which [the defence] takes issue with the prosecution",and the reasons for taking issue with the prosecution. That again goes a good deal beyond the Royal Commission's recommendations and seems to conflict with the provisions in Part III that there should be a preliminary statement of the case for the prosecution. After all, without a preliminary statement of the case and the evidence relied on, how can the defence actually know on what matters it takes issue with the prosecution?
We see no provision in Part I for what we believe to be necessary; that is, the possibility of some supplementary defence statement which is based on fresh information which would therefore trigger further prosecution disclosure. There appears to be good provision for a continuing review of prosecution disclosure in the Bill, for which we are grateful. But it should apply to defence disclosure as well. There are matters like the definition of "public interest" and the question of the interception of communications which will probably require further consideration in Committee and the later stages. However, we do not need to go into such matters in detail at Second Reading.
I move on to Part III of the Bill. We broadly agree with the proposals for preparatory hearings. We agree that it is right that there should be a prosecution case as set out in Clause 24(5) and a responding defence case as set out in Clause 24(6). We believe that that is a better procedure than requiring the defence to present a complete alternative case, as appears to be implied in other parts of the Bill. However, to be effective the preliminary or preparatory hearings would require continuity of counsel, including senior counsel. There must be sanctions to ensure that senior counsel who will run the case are available for the hearings. There must also be continuity of the judge. The whole of Part III refers to "a judge of the Crown Court", but there is no implication that it will be required that the same judge conducts the trial. Common sense dictates that that should be the case, but I do not see it in the Bill. I should like to see it made clearer either in the Bill or in ministerial statements.
Part IV refers to rulings at pre-trial hearings on the admissibility of evidence and other questions of law. We welcome those provisions. As the Minister said, Part V refers to some of the conclusions of the 1992 review of magistrates' courts procedure and magistrates' court warrants and an early plea on either way offences. I wish to draw those matters together to some extent by saying that surely it must be an objective of all parts of 472 the Bill that there should be encouragement and reward for early pleas of guilty if they can be obtained. That must be to the benefit of a fast and efficient criminal justice system. We see it in Part V of the Bill but I am not yet convinced that with all those provisions for disclosure after plea it appears adequately in other parts of the Bill.
We welcome the proposals in Clause 36 for more flexible treatment of appearances on remand by juveniles. In Part VI of the Bill we welcome the references to tainted acquittals, jury nobbling and the implementation of the Royal Commission recommendations on reporting of allegations.
There is a great deal of the Bill with which we agree, and our amendments will be constructive. They will not be wrecking amendments. However, there are still matters, particularly on disclosure, on which we need a great deal of further thought. We need the kind of constructive interchange between the Government, Opposition and other Members of the House which has so often been a feature of the attitude of the present Minister to legislation.
In closing, I refer again to the three major issues. The first is the principle of defence access to all the relevant material obtained from the police by the prosecution. It is welcome that the police should have to reveal everything to the Crown Prosecution Service but the scope given to the prosecution to pick and choose what goes to the defence requires further consideration and may well be too wide.
As regards defence disclosure, it does not seem realistic, in the nature of what the defence has already learnt about the prosecution, for the requirement on matters on which the defence takes issue with the prosecution to be spelt out as it is in the Bill. I conclude where I began with the code of practice. Unless we know what the code contains, we are not adequately able to consider Part II and therefore Part I of the Bill. It is vital that the Minister should pull out every stop to make the code of practice available to us in time for us to consider it so that we may have a constructive and helpful Committee stage and further stages of the Bill.
§ 3.46 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, the Minister moved the Second Reading of the Bill in her admirable and practical way, making it look like a piece of prudent housekeeping, dealing essentially with technical matters to ensure, as she put it,that [the law] is fair, efficient and effective".That was the style of the disclosure consultation document. Paragraph 10 describes the current position as placing,heavy burdens on the investigating and prosecuting authorities, with results which may not be in the interests of justice".Turning to the Government's approach to the problem, the document said that significant reforms were needed,in order to achieve a proper balance in the interests of justice".The document dwelt on the recommendations of the Royal Commission on Criminal Justice, though proposing to depart significantly from them.
473 I hope that I shall not distress the Minister by saying that that was not the mood and style of Blackpool, when the Bill was foreshadowed. There was no talk at that time at the seaside from the Home Secretary about "heavy burdens" or "balance", about guidelines or Royal Commissions. It was the usual rhetoric of such occasions:Too many guilty men still walk free from our Courts ... we must stop it … It's time to even up the scales of justice".In the context of the Home Secretary's Blackpool speech, the Bill could be regarded less as a piece of prudent housekeeping, as the Minister sought to demonstrate it to be, than part of a personal manifesto on which the Home Secretary is always campaigning. That is one reason we must approach it carefully, despite the entirely reasonable way in which the Minister has presented it to the House today.
The noble Lord, Lord McIntosh, referred to the joint statement issued earlier today by the Bar Council, Justice, the Law Society and Liberty. I do not believe that they are always in agreement, but they appear to be on the Bill. The view of the four bodies is well summed up by the remarks of the chairman of the Bar Council when he said of the proposals on disclosure:These proposals tip the scales of justice too far".He meant by that, too far in favour of the prosecution and against the defence. We should heed his words. I want to comment further on them when I return later to the central matter of the Bill and our discussion today.
If I may break the sequence for a moment, I am sure the Minister is already aware of anxieties expressed by the BMA about Clauses 16 to 19 of the Bill. It is concerned about the need to keep a balance between the duty of a police surgeon—which is the duty of every doctor to a patient—and his duty to the police. The traditional practice has been for the police surgeon to provide a statement to the police giving only forensic evidence. However, the police and the Crown Prosecution Service have recently been requiring a further disclosure that conflicts with the rules of the General Medical Council.
I do not ask for a detailed statement from the Minister today. However, I ask her first: do the provisions of the Bill embody in statute a new procedure of the kind that the BMA fears? If the answer is yes, however wrapped around with safeguards it may be, will she have urgent discussions with the BMA to find an acceptable resolution of this matter? Those of us who have no experience of the courts, and I am among them, may occasionally watch "Dangerfield". I should not like to add this legislation to the problems of that admirable and rather tortured character that we enjoy when watching television.
I turn for a moment to Part VI of the Bill. The purposes of Clauses 38 to 41 seem entirely reasonable. However, I have two questions for the Minister. First, how many cases have there been—within a convenient period—when a person has been convicted of interfering with or intimidating jurors or witnesses in the circumstances described here? In other words, how many people are likely to be tried again for an offence 474 having once been acquitted? Secondly, is the Minister sure that judges sitting in the High Court will be in a position to decide whether,there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted"?Will they be able to decide that when they have not been involved in the original trial and cannot be sure what view the jury would have taken? Perhaps in reply to those two questions, the Minister will also be kind enough to explain the weight of Clause 38(5), which appears to give the High Court a wide discretion not to take proceedings. The subsection refers to,lapse of time or for any other reason".Clause 39(2) does precisely the same. Can the Minister give the House an example of "any other reason" that would apply in this case?
Clause 42, again, on the face of it contains some very reasonable provisions on reporting restrictions. We shall want to examine them very carefully in Committee. Perhaps, however, the Minister will help the House today by confirming that the provisions of this clause and the two subsequent clauses cover all media. Subsection (4)(a) mentions "a written publication" and subsection (4)(b) "a relevant programme". These are defined in subsection (7). Is this a catch-all provision despite the qualifying phrase, "in permanent form"? To repeat my question: are all media affected?
As this is Second Reading, perhaps I might mention a broader question. The Minister referred to three further major items that she hopes will be included in the Bill by amendment at a later stage. Normally, noble Lords take the view that major amendments of this kind made to a Bill after Second Reading are not desirable. However, I accept entirely the Minister's remarks about the importance of these issues, and I assume that they could not be ready for inclusion in the Bill.
If I allow the Minister that discretion, perhaps she will allow me this on my part. I want to raise the question of the recent proceedings at Winchester Crown Court and the widespread concern expressed by, among others, the Attorney General about large sums of money paid to witnesses by newspapers during the West trial. My instinct is that it would be very difficult to legislate directly on newspapers, as that would be seen as interfering with the freedom of the press. But I wonder whether this Bill might be the place to include some time-limited restriction on the entitlement of witnesses in a criminal case to sell their story under contract. I simply ask the Minister to think about this matter and to take what advice she chooses. I reach no conclusion of my own. This is an issue of great concern at the present time. This Bill might enable the Government, either in this Chamber or in the other place, to go some way to meeting what I believe is strong public feeling on the matter.
I return to Parts I and II of the Bill. I strongly agree with the noble Lord, Lord McIntosh, about the code of practice. It is essential that this House should be able to examine it along with the relevant parts of the Bill. The code will of course be laid before Parliament before Part II is brought into operation, but we need a draft now, if only to satisfy ourselves that nothing it might contain 475 should be incorporated on the face of the Bill. The parliamentary draftsman could hardly have done his work on the Bill properly without a clear brief from officials about the content of the code. That could have been available to the House today, if only in draft form. I am asking for a little disclosure on the part of the Minister so that we may discuss it before Committee stage. Indeed, I take the view that if it cannot be available in the next three weeks, which I understand to be the time between now and consideration in Committee, there is a very strong case for postponing the Committee stage altogether until after the Christmas Recess.
I return briefly to the question of disclosure. To anyone who is not a lawyer or has direct experience of the courts in another capacity, the fine distinctions of this part of the Bill dealing with disclosure are not always easy to follow. The Minister did her best today, and I am most grateful to her for the way in which she described the manner in which the Bill differs from the consultation document. But perhaps I may make a suggestion. If she feels that there would still be time to act upon it, it would be very helpful to this House, particularly in Committee, to have a written comparative analysis in tabular form of the relevant recommendations of the Royal Commission, the proposals in the consultation document and the provisions of the Bill. Then, with some helpful footnotes, we should be able to contrast and compare them. In that way we might save time in Committee, and the Minister's time as well.
On the central issue, my simple lay view—naïve though I suppose it must be—is that all evidence should he equally available to the prosecution and the defence. Any departure from that principle needs to be explained and justified. In practice, I agree that it is a matter of proper balance and is very difficult to get right. I was impressed by the three cases set out in paragraph 15 of the consultation document in which prosecutions were abandoned. The first was in a Thames Valley Crown Court. It is repeated in a useful and fair-minded note which some of us received from the chief constable of the Thames Valley Police. I certainly fully understand the frustration of the police when they are obliged to abandon what seems like a water-tight case as a result of what they believe to be the likely consequences of disclosure.
On the other hand there is a tendency, one which I felt even in the consultation document, to treat defence lawyers as tricky operators pushing the system to the limit, while prosecuting lawyers are always shining lights showing proper professional restraint. I understand that defence lawyers are associated with "ambushes" and "fishing expeditions" that wrongfoot the prosecution. They do not quite play the game.
However, the research study of Michael Zander and P. Henderson for the Royal Commission shows that what I believe were last-minute defences were raised in only seven to 10 of Crown Court cases. Roger Leng's research study for the Royal Commission put such ambushes as low as 2.5 per cent. of trials, although this did not prevent conviction. Professor Zander was a member of the Royal Commission and signed its report. However, in a note of dissent on some of its recommendations he said the following: 476The fundamental issue at stake is that the burden of proof lies throughout on the prosecution. Defence disclosure is designed to be helpful to the prosecution and, more generally, to the system. But it is not the job of the defendant to be helpful either to the prosecution or to the system. His task, if he chooses to put the prosecution to proof, is simply to defend himself.I find it difficult to dissent from Professor Zander's view.
To summarise the position, on the one hand one needs to take account of the frustrations of the police in their proper pursuit of the criminal and their wish to bring him to justice and, on the other hand, to acknowledge Professor Zander's point of principle. The Bill must endeavour to square that circle in all its parts.
In the course of the debate on the Address I made reference to paragraph 23 of the consultation document which appeared to reject the Royal Commission's scheme. I do not believe that convincing reasons have been given for doing this; nor, with respect to the Minister, have they been given today. At best, the Bill represents only a partial retreat from the consultation document of the kind that Ministers have described. I will be most interested to hear what the noble Viscount, Lord Runciman, has to say on this precise point.
From these Benches, we shall certainly approach the Bill in a constructive and not adversarial way and will consider carefully all that the Minister has to say. The Government have accepted the Royal Commission's case whereby the principles governing disclosure should be set out in primary legislation. We also accept it. But the principles must be the right ones, and it is for the Minister to satisfy your Lordships that they are.
§ 4.2 p.m.
§ Lord Taylor of Gosforth
My Lords, on this occasion I am pleased to say that I welcome in principle the proposals that the Government have brought forward in the Bill. I am also grateful to the Home Secretary for his courtesy in having advised me beforehand of its likely contents. The Bill continues the work that was begun in 1991 with the appointment of the Royal Commission on Criminal Justice under the distinguished chairmanship of the noble Viscount, Lord Runciman of Doxford. For example, the provisions that deal with disclosure, preparatory hearings, tainted acquittals and reporting restrictions on speeches in mitigation all derive, with modifications, from recommendations made in the Royal Commission's report. I believe that with this Bill the legislation required to implement the report will be very nearly complete. As I said when your Lordships debated the Royal Commission's report in 1993, it carefully balanced the interests of the state and the suspect, and its proposals needed to be seen as an entire package. I am glad that the package is to be completed. Once more, I pay tribute to the work carried out by the noble Viscount and his fellow commissioners.
The Bill's origins in the Royal Commission's report will not, I am sure, exempt it from very careful scrutiny in this House both in Committee and at later legislative stages. I do not have time today to discuss every part of the Bill. I should, however, like to say something about its major provisions. The arrangements for disclosure in Parts I and II account for nearly half the Bill. They will 477 probably prove to be the most important, as well as potentially the most controversial, of the Bill's provisions. Whatever controversy there may be about these clauses, I believe that all of your Lordships can endorse the wisdom of clarifying by statute what has become a complex and, in a number of respects, unsatisfactory area of the law. Despite the concerns of distinguished commentators, including Professor Zander who was a member of the Commission, I support the principle of reciprocal disclosure by both prosecution and defence, as recommended by the majority of the Royal Commission.
I am also pleased to note that, having consulted on these proposals, the Government have listened to the views expressed and modified their approach in important respects. For example, the Bill will require the prosecution to provide the defence with a schedule of unused evidence and will not, as initially proposed, require the defence to provide the names and addresses of all the witnesses it may wish to call.
We should be clear about the purpose of the requirement for reciprocal disclosure. It is not, as has been suggested, to make it easier for the prosecution to secure convictions. It is not to put either the defence or prosecution at a disadvantage. It is to benefit both sides and the court by the early identification of the issues, thus enhancing the efficiency of the trial process in serving the interests of justice. It must also be said that it will save expense. It is for this reason that we have long required defendants to provide advance disclosure of proposed alibi defences. Defence disclosure should assist in weeding out cases which should never come to trial because the defendant has a good answer to the charges against him. In precisely the same way, it is of benefit to defendants to have genuine alibis confirmed by the police at as early a stage as possible.
But, equally, defendants who are guilty should not be acquitted because of ambush defences—a phrase that has already been used—which cannot be properly tested or refuted in court. It is not an injustice to deprive guilty defendants of the opportunity to do this. Nor should defendants be able to make unreasonable demands for police or prosecution disclosure as a tactical ploy, or to make fishing expeditions—a phrase that has also been used this afternoon—in the hope of fastening upon a red herring or turning up a technical flaw in the prosecution case.
The noble Lord, Lord Rodgers of Quarry Bank, has used the phrases "ambush defence" and "fishing expeditions". He has suggested that they are spectres which are overplayed by those who find it necessary to redress the balance more in favour of the prosecution than at present. I assure the noble Lord that traditionally there has been a difference in approach between the duties of prosecuting counsel and defending counsel. The duty of prosecuting counsel has always been simply to lay the facts before the court, not to seek too officiously to press the case. A phrase well-known at the Bar is "the prosecution wins no victories, suffers no defeats". But defending counsel has a duty to his client, whose liberty may be at stake, to do everything that he properly can within the law and the rules of his 478 profession to secure an acquittal in any way that is open to him on the evidence, or lack of it, in the case. There is a difference of approach. Ambush defence and fishing expeditions, if they are within the law, are ploys that defence lawyers can and have adopted. It may be thought that the time to restrict the extent to which that can be done has arrived.
One gap in the Bill is that at present it does not cover so-called third party disclosure. This has become increasingly important, for example, in child sex abuse cases, where potentially relevant material relating to the child may be held by a number of local authority social services departments. It is an area in which currently much time, effort and money is wasted by all those in the system. It needs urgent clarification. Therefore, I am very glad that the noble Baroness, Lady Blatch, has indicated that clauses will be brought forward as the Bill progresses to deal with that matter.
I turn briefly to Parts III and IV which also follow recommendations by the Royal Commission. Particularly welcome is the introduction in Part IV of the power to make binding rulings at the pre-trial stage. At present the fact that rulings are binding only if made after the trial has formally commenced often means that juries have to be sworn in and then sent away again for long periods while the lawyers argue over issues which could better be resolved at a much earlier stage. It is right that we should be conscious of the burden that jury service imposes on the citizen and I believe that we should try to minimise that burden wherever possible.
The lack of a power to make binding rulings at pre-trial hearings also means that, currently, if a ruling has been given before trial, it is possible to re-argue the same point before the trial judge. Of course, there are occasions when it is right to revisit previous rulings in that way—the circumstances of the case may have changed. The Bill rightly provides for that by allowing the parties to apply for the discharge or variation of a binding ruling, if there has been a material change of circumstances; and by providing that a judge may also discharge or vary such a ruling of his own motion, if it appears to him in the interests of justice to do so. The power to make binding rulings may well reduce the demand for the full preparatory hearings allowed for in Part III. Such hearings certainly have their place, both in serious fraud trials and in other exceptionally long or complex cases; but I do not expect their use to become widespread and hope that that is not the intention.
Perhaps I may respond briefly to the observation of the noble Lord, Lord McIntosh, that the judge giving the pre-trial ruling should always he the trial judge. Desirable though that might be in an ideal world, it is severely impractical in the management of the courts because one would be tying down judges to individual cases all over the country and it would make the listing of cases almost impossible. Clearly, there are important, complex cases—serious fraud cases and others—where it is right that the judge who deals with the preparatory rulings should be the trial judge. Indeed, that has been the case already in a number of major trials. But we have to find some way of making pre-trial rulings binding even where there is a change of judge, subject to the possibility of review to which I referred.
479 The only other provisions that I shall mention are those in Part VI which deal with what the Bill calls "tainted acquittals". I believe that your Lordships will want to examine particularly carefully those proposals, which again follow recommendations of the Royal Commission. We must be vigilant to respect the rule against double jeopardy, which is a most important safeguard against oppressive prosecutions. However, having said that, I take the view that it cannot be right, when a person has been proved to have been acquitted through interference with jurors or witnesses, that he should then be able to laugh at the law, knowing that he cannot be retried for his original offence. That is simply to reward jury-nobbling. In such circumstances the defendant was not, in the full sense, in jeopardy at his first trial. Therefore, it is right that there should be the possibility of a retrial to remedy matters. That is already the law in circumstances where, for example, a defendant is acquitted after a trial on a defective indictment and so was not truly in jeopardy.
There will need to be very rigorous safeguards against any misuse of the power to order retrials of those who have been acquitted and the House will wish to be certain that those in Part VI are sufficient. Subject to that caveat, however, I believe that these provisions should provide a valuable disincentive to jury-nobbling and should help to ensure that the criminal justice system achieves its aim, which is to do justice both by acquitting the innocent and by convicting the guilty.
§ 4.15 p.m.
§ Lord Renton
My Lords, having heard the noble and learned Lord the Lord Chief Justice, it will be an anticlimax for your Lordships to listen to me, more especially as it is many years since I tried the last of about 200 cases of trial by jury at the lower level of recorder, deputy chairman of quarter sessions and, indeed—until I was disqualified by an Act passed in another place—as a relief judge at the Old Bailey. I am sure that what your Lordships have heard from the noble and learned Lord will be very reassuring as regards the contents of the Bill. The Government have taken an immense amount of trouble over it. As we heard, its proposals are based on recommendations of a Royal Commission, a consultation paper and the review of magistrates' courts' procedure.
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.
The noble Lord, Lord McIntosh of Haringey, made a good point when he accused the Government of putting the cart before the horse. Investigation is so fundamental to what follows that we should perhaps consider Part II first; then Part I; with Part III following naturally from Part I.
With regard to Part I, we should rejoice in the fact that it will rationalise pre-trial disclosure of evidence. There is no doubt that it will have the advantage of shortening many criminal trials and it may reduce the cost of cases, both for the prosecution and the defence. It might also have some marginal beneficial effect on 480 the overall cost of legal aid. I was glad to hear the noble and learned Lord's remarks on notice of alibis. It is right that they should be given sooner and with more particulars.
As for Part II, as has been said, it is vital that we should have the code of practice before the start of the Committee stage. I do not believe that that would be difficult for the Government to do. I hope that they will do it.
Part III also will have the effect of shortening many criminal trials. Clause 28 deals with reporting restrictions and will help, to some extent, to reduce trial by media. Clauses 26 and 27 are very important. They will enable points of law or of admissibility of evidence to be dealt with finally before the trial by jury begins, even when appealed. At first sight it might seem to postpone the ultimate result—the conviction or acquittal of the accused—but so long as interim appeals are disposed of quickly, there should not be much delay.
I suggest that the noble and learned Lord the Lord Chief Justice administratively will have a great responsibility for ensuring that these new types of appeal are dealt with as quickly as possible and are given priority over what one might call "the run of the mill appeals". I am sure that he will be conscious of the responsibility that he will have to exercise in that particular matter. It is an administrative matter and cannot be written into the Bill.
Turning to Part V, having piloted through another place the first of the attachment of earnings Acts in 1958, I should remind your Lordships that that legislation was strongly opposed. But long experience of that system since then has shown that it was fully justified. Admittedly, it applied to attachment of earnings in matrimonial cases and not in criminal cases, but over the years we have developed the system and it has not led to hardship or injustice. Indeed, I am glad to see that further consideration is given to it in the Bill by giving the court power to make an order, even though there has been no application made for an order.
We have had many criminal justice and criminal procedure Acts in the 50 years since the war and every one of them was based on experience in the courts in the few years prior to the Act. It is an interesting reflection that nearly all the developments contained in that legislation worked well; they have been justified and have .not had to be much repealed. How is it then that we have to continue introducing such legislation? Sometimes it is due to scientific matters, as we found a few years ago when we were discussing the possibility of recording evidence before trial, and sometimes it is due to the ever-increasing ingenuity of our profession at finding ways of helping accused people to overcome the rules of justice. I am convinced that this Act will be just as successful as the others that have been passed over the years.
§ 4.21 p.m.
§ Baroness Mallalieu
My Lords, I speak on this Bill at Second Reading from the Back Benches and as a full-time practising member of the criminal Bar. To my knowledge I have been directly involved in two criminal 481 trials which resulted in wrongful convictions because material which was known to the investigators was not disclosed to the defence at the time of trial. In one case a 12-year sentence was served before the material came to light and the sentence was, somewhat academically, quashed. In another case a year of a life sentence was served by a 17 year-old before the wrong was corrected.
I used the words "to my knowledge" because miscarriages of justice which result from non-disclosure remain undetected and therefore uncorrected if the material never comes to light, which I suspect is the case in many instances. Because the names and the faces of the people involved in those two cases, and the memory of how they reacted when they were sentenced for crimes which they had not committed, will always remain with me, it is difficult for me to be as dispassionate about Parts I and II of the Bill as some noble Lords who have already spoken. However, I shall try to be so and also try to be constructive in what I say.
To steady myself, first, I warmly welcome a number of provisions in the Bill. The first, in Part III, are the provisions for the extension of preparatory hearings. A pre-trial review (or PDH as we call it at the Bar, a practice direction hearing) is already commonplace in many of the less major cases today. Preliminary, or preparatory, hearings, have proved valuable in long, complex fraud trials and though, as the noble and learned Lord the Lord Chief Justice indicated, I suspect this provision will not be used extensively, it is useful for a trial judge to have as an option.
The second matter I wish to support has already been mentioned, again by the noble and learned Lord the Lord Chief Justice; that is, the provision of allowing a judge to make a ruling before trial on matters of law, including matters relating to the admissibility of evidence. The absurdity of the present situation can perhaps be illustrated by my indicating a matter in which I was concerned earlier this year. Legal argument in relation to admissibility which had to take place at the outset lasted over a week. The jury had to be sworn and sent away to come back after a week to start the trial. The jury required to be protected and therefore teams of police officers had to be arranged to protect them from the moment they were sworn for the whole of the week. I do not know how many officers and police hours were taken up with that duty before the jury knew anything about the case. This provision will prevent that happening in the future.
Perhaps I may mention Part V. Though I readily appreciate that there are good reasons for magistrates inquiring of a defendant whether or not he proposes to plead guilty before it is decided whether or not his trial is to be summary, I should like reassurance from the Minister when she replies that that step will only be used in cases where a defendant both consents and is represented. I say that because a defendant knows well that if he is sent for trial at the higher court he faces possibly a longer prison sentence, the maximum being higher before the Crown Court. If the defendant is asked at the outset whether or not he will plead guilty before 482 that decision is taken, I am afraid that will entail some pressure being brought to bear on him to plead guilty when he may not otherwise do so.
I welcome also two other matters in Part VI. The first is the "jury nobbling" provision. It may be anecdotal, but one hears of instances where it has occurred. The noble Lord, Lord Rodgers of Quarry Bank, asked, and I too should like to know, how many cases we are talking of in that regard. I echo too what was said by the Lord Chief Justice, that Clause 39 of that part of the Bill provides certain safeguards and reduces the instances in which such a prosecution can be mounted. But I am concerned that those safeguards should be strengthened in order to meet the double jeopardy danger.
In relation to reporting restrictions, I welcome Clause 42 of Part VI. It is wholly wrong that someone should be able to use the cloak of protection provided by the court against defamation proceedings to make unjustified derogatory attacks on the character of somebody else in mitigation when those have not been part and parcel of the trial. The general principles and the safeguards for that part of the Bill have my support.
I turn to Parts I and II dealing with disclosure. I hope that the words "as soon as possible" which the Minister used will enable us to have an opportunity to see that code before the Committee stage of these proceedings. I venture to suggest that it would have been more helpful for a draft code of practice to have been released at the same time as the consultation document. Perhaps matters are improving slightly because I recall a criminal justice Bill before this House after I came into this place when the code of practice was not published until after the Bill had left this House. It is simply not good enough for codes of practice, which are an integral part of Bills, to be produced only at a late stage or not at all in these proceedings. I hope that when they are available the codes of practice will go some way towards dealing with the reservations which I am about to express. For the moment, at Second Reading, I shall do my best without them.
The Minister will be aware that reservations have been expressed about those parts of the Bill not only by organisations such as Justice, but also by those who practice in this field and will be dealing day to day with the legislation which this House is discussing. I refer to the Law Society, the Bar Council and the Criminal Bar Association. I pause to point out that the briefing which I hope the Minister had an opportunity to read was contributed to by two of the most recent leading Treasury counsel at the Central Criminal Court; in other words, the primary prosecutors in this country. Their anxieties—I hope I express' them correctly—are these. Any system which places the burden on the prosecution to decide the relevance to the defence of unused material, without proper safeguards, is both wrong in principle and a heavy though not impossible burden on the prosecution in practice.
The Government decided for the first time in this Bill that there should be a statutory framework governing the principles of disclosure both by prosecution and defence. Opponents to that approach would argue that 483 prosecution disclosure is properly provided by the rules of common law; in other words, by the decisions of the courts. But the Government decided otherwise.
For the purposes of the Second Reading of this Bill I recognise that the Government have been under great pressure from the police, who felt that they were placed under great burdens, and also from the prosecuting authorities who have felt under great handicaps. Given that statutory provisions are to be made to apply, the aim of the Bill must now be to ensure that those provisions see that, so far as humans can, justice is done to both sides at the subsequent trial. The provisions have to ensure not just that those who are not guilty of crime shall have access to all the material which they need both to challenge the prosecution's case and to present their own defence, but also that those who are guilty of crime shall not be able to take advantage of what I shall call procedural trickery in order to avoid conviction. In order to achieve both those principles the Bill may well need some attention and some alteration.
Perhaps I may turn relatively briefly to defence disclosure. I welcome the principle that the defence should disclose the outline of its case to the Crown once the defence knows the detail of the case it has 05 meet. First, it is likely to mean that cases are prepared better and earlier by the defence. Secondly, as has already been said by the Lord Chief Justice, it is not uncommon for openness to result in a prosecution being stopped or dropped by the Crown. Thirdly, clarification of the issues can and does sometimes lead to an additional or alternative charge being added so the case resolves into a plea of guilty rather than a contested trial. Fourthly, openness, I suppose, may prevent the defence from using an ambush defence where fabricated evidence cannot be investigated and exposed. I know that those kind of defences exist because the Home Secretary says that they do, but I am bound to say that in 30 years I have never come across one. Fishing expeditions have been referred to somewhat pejoratively, but if you have not committed a crime and you therefore know that someone else has, of course you want to look and see whether there is material which the Crown has which points the finger at who is responsible. What is the matter with that?
Fifthly, defence disclosure will enable the jury to see at the outset what the issues in a trial are and what the case is about and therefore enable them more readily to come to the correct verdict. I hope that it will also stop, or at least reduce, the undesirable practices of the newspapers reporting only the prosecution opening and then the final result, giving the public who hear nothing of the defence a false picture of an unjustified acquittal.
The reservations which I have about those parts of the Bill in relation to defence disclosure are shortly these. First, an outline of the defence case and a clarification of the issues are one thing; but Clause 5 (4)(c) in effect requires the defence to argue the case. That is a matter which must surely remain for cross-examination at trial.
Secondly, sanctions for non-compliance or for a change of tack must surely also apply equally to the defence and the prosecution, as they do in relation to preparatory hearings at present. But under the Bill as I 484 read it, the sanctions for a change of tack or a failure to disclose apply only to the defence. I have criticisms of timing too. Surely such disclosure is desirable at the earliest possible time, but that can only be after the defence knows what the Crown case is; in other words, after it has received a case summary or a case statement. Especially in the magistrates' court, where sometimes evidence may not be served on the defence at all, this is crucial. I should like to see the Bill incorporate some requirement that before the defence discloses it has such a statement.
Next, and lastly, there really must be provision for supplementary disclosure by the defence if fresh evidence comes to light. Surely the defence will not be effectively stopped from pursuing a new avenue, either as a result of disclosure or by other investigations of its own, if other matters come to light which change the approach it proposes to take at trial.
So far as concerns Crown disclosure, there are a number of matters which need to be scrutinised with great care and possibly amended. There must surely be a duty on the investigators, which for all practical purposes means the police officers investigating the crime, first, to record such evidence as they acquire; secondly, to ensure that all that material goes on to the prosecutor; and, thirdly, to ensure that that material is retained. Some of that will, I hope, be contained in the draft codes of practice, but there is one matter on which I would particularly seek reassurance from the Minister. It seems that at the stage of primary disclosure at the moment the Crown must show the defence material which in its view undermines its own case. I seek some reassurance that prosecuting counsel will retain a discretion, both at that stage and indeed at the later stage of secondary disclosure when he has received the defence statement, if he thinks fit, to say, "You may have access to all our material". That does not necessarily mean copying thousands of pages of documents; it may simply mean, "You may come to the police station, be shown the material, and an officer will provide, if need be, copies of those which are of relevance". If that does not happen, if the Crown Prosecution Service or, indeed, prosecuting counsel has to trawl through hundreds, perhaps even thousands, of pages of documents at the first stage and then again later after defence disclosure has occurred, in cases where the view is taken that no disclosure to either side will cause inconvenience or embarrassment, that surely must be a retrograde step. I would ask for an assurance from the Minister that prosecuting counsel will retain a discretion to take that course in an appropriate case.
I am very pleased to learn that a detailed schedule is likely to be given to the defence. Indeed, it must be, because a schedule which does not enable the defence to know what material the Crown holds, with sufficient particularity for it then to ask for items from it, is worthless and meaningless. I am concerned about the provisions in relation to timing. Surely disclosure must take place as soon as possible after charge, and not, as the Bill appears to envisage, after plea. If it is not to be given until after the defendant has pleaded, surely the intention, which I understand is to encourage early pleas of guilty where appropriate, will be thwarted. 485 In addition, it may be the case that in some instances people will plead guilty without having the opportunity for proper consideration of all the evidence.
Primary disclosure—this is not on the face of the Bill and it ought to be—must surely be accompanied by a case statement or a summary so that the defence understands precisely the way in which the case is to be put by the Crown. On subsequent disclosure, there are provisions in the Bill, for which I am grateful, for the matter to be continually reviewed by the Crown. But they must surely be duties which continue in accordance with continuing defence disclosure. In other words, just as the defence may need to put in a subsequent statement, so surely, if that happens, the duty of the Crown to disclose additional material must relate to the defence as it is currently disclosed and not simply to the original document served.
As the Bill is currently drafted, the proposals create a real difficulty for the Crown Prosecution Service or prosecuting counsel to sit down with a defence statement and, as I have indicated, perhaps many thousands of pages of documents. It is a terrible burden to require prosecuting counsel to try to identify and then to disclose to the defence those parts which are relevant to the defence. In many instances, how on earth is he to know? The provisions of the Bill provide in effect an opportunity for the unscrupulous prosecutor who wishes to conceal material—those, I trust, are very few; but, rather more frequently and rather more likely, for the inadvertent prosecutor to fail to disclose some vital material.
Of course, we have been told that there has been a great increase in the amount of time and money spent by police officers in dealing with disclosure. I am troubled that what appears to be the likely outcome of these provisions is that that burden, in terms of time and expense, too, will simply be transferred on, first to the Crown Prosecution Service and then to counsel. That will have adverse legal aid implications. I say that without, of course, taking into account what will necessarily be a costly increase in applications to the courts in relation to material which is not disclosed and which the defence wish to see. I add finally in relation to that matter that inevitably, when judges are looking at material and deciding whether or not it is relevant, there will be a wide variety of approach on the part of the judiciary, which in itself, in an area such as this, is undesirable.
Those who are directly concerned with this Bill have expressed concern about the workings of these parts. In another place the right honourable gentleman the Home Secretary, speaking on 21st November (Official Report, Commons, col. 551) said:That Bill will reduce the unnecessary burdens of the present arrangements, without denying defendants access to the material that they need".That sounds good. If this Bill did that, it would have my wholehearted support in its present form. But those who are in practice and have to deal with it are not satisfied that the Bill in its present form does not present a real danger of taking a step back to the bad old days when important material did not reach the defence in time to 486 prevent a wrongful conviction. I hope that the Government will listen to those concerns and respond to those worries in the later stages of the Bill so that those who will have to operate this legislation can feel more at ease with it.
§ 4.42 p.m.
§ Viscount Runciman of Doxford
My Lords, it is a pleasure for me to welcome this Bill, enshrining as it does so many of the recommendations of the Royal Commission. I say that both as regards the provisions about disclosure and also the proposed regime for pre-trial reviews of hearings and all the benefits in both efficiency and justice which I believe can, and now will, follow from them. I am also very grateful to the noble and learned Lord, Lord Taylor of Gosforth, for his generous remarks about the work of the commission.
As other speakers have said, the Bill is a considerable improvement in some respects on the consultation paper. Had some of the proposals which were in the consultation paper, but which are not in the Bill, remained in it, I would have been bound to say to your Lordships that I thought that neither the interests of justice nor of efficiency were being well served. But these changes are indeed very welcome.
In my view, and in the view of the overwhelming majority of the members of the commission, it is quite right that the obligation on the prosecution to disclose any material which might undermine its own case should be combined with a requirement on the defence—if the defence wishes to go through in detail material on which the prosecution does not intend to draw—to show the relevance of that material to the proposed defence and also for the court to be the ultimate arbiter in cases of dispute. I of course recognise that the commission was not unanimous on that point, but I should say that our academic member, Professor Michael Zander, whose contribution on very many points of both principle and detail was extremely valuable, was in this case not supported by the very experienced practitioner members of the commission, both of whom have long experience of defending people charged in some cases with quite serious criminal offences. They felt, as I did and do, that there is no compromise in these proposals with the principle of the burden and standard of proof in criminal cases. As I have said to your Lordships before in earlier debates on this subject, I do not believe that there is any controversy in principle here. We are all of one mind as to the objectives which we would like the criminal justice system to achieve. There is no party political element in it at all.
In voicing three reservations about the Bill as it stands, I hope that I and other speakers who clearly share some of these concerns, may be pushing at least a half-open door. The first of these reservations concerns the lack of effective sanctions on the investigating authority to disclose all the material in its possession. I was struck by the reminiscences of the noble Baroness, Lady Mallalieu, and her direct experience of a case. There have been too many such cases, few though they may be, where someone has been wrongfully convicted 487 of a serious offence, which subsequently turns out to have been committed by someone else. It does immeasurable damage to public confidence in the criminal justice system when it turns out, as it has done in this small minority of cases, that police officers have withheld information which, had it been available at trial, would, almost without question, have led to the justified acquittal of the defendant at that stage. It is small consolation to such unjustly convicted defendants and their families that—it may be many years later when the evidence comes to light—the conviction is overturned by the Court of Appeal. As other speakers have said, it is a great pity that we do not have the code before us. I am sorry that we do not have the framework of the code on the face of the Bill, but no doubt those issues will be returned to at a later stage and there will be time for ample further debate.
My second reservation concerns what is referred to as the "schedule" or the document indicating the nature of any prosecution material which relates to the defence. What is important here, as I hope we can all agree, is that whether one calls it a schedule or what you will, the defence should be fully enabled to judge whether, among the material on which the Crown do not intend to rely, there could indeed be something which might show that the prosecution case was not as well founded as it appears. Where there is an enormous amount of material to which the defence would like to have access perhaps it is all the more important that it must be possible for there to be a full and detailed schedule which would disclose material which the prosecution would not otherwise make available.
My third reservation is on the point of timing on which, again, other noble Lords have touched. It is surely in the interests both of efficiency and justice that primary prosecution disclosure should take place as soon as possible after charge, together with a statement of the case. There is a real point of principle here: it is surely wrong for a defendant to be required to disclose even the outline of his or her defence without being entirely clear of the nature of the offence with which he or she is being charged. But quite apart from the point of principle, it also touches directly and practically on questions of efficiency. If we want, as the Minister has said is the Government's wish—and again I believe that this would be endorsed by all Members of the House—earlier pleas of guilty; earlier and therefore better, preparation of cases; earlier fixing of dates and, not least, as a consequence less strain on the victims and witnesses, that will be best achieved by the disclosure of the prosecution case immediately after charge.
There are other points which have been raised by other speakers, which I would endorse were I to speak longer. We shall need to revisit a number of the more detailed points that have been raised on Second Reading. I hope to take part in those discussions in Committee. The final point I make at this stage is wholeheartedly to endorse what the Minister said about the importance of restoring public confidence in the system. The Bill will, I think, do that if and where suitably amended. Once again let me say that I know that I am speaking on behalf of all my colleagues on the Royal Commission when I say that we welcome the Bill.
§ 4.50 p.m.
§ Lord Alexander of Weedon
My Lords, I, too, welcome the thrust of the Bill and do so with greater confidence because of the endorsement it has just received from the noble Viscount, Lord Runciman. In my early days at the Bar, the suggestion of an elaborate statutory procedure to govern disclosure would have been viewed as slightly quaint. The instinct for fairness, and the ethos of the police, prosecution, solicitors and counsel were then the best safeguard of a fair trial. But times have moved on, and for reasons upon which your Lordships are unanimous it is now rightly thought that a statutory regime is appropriate.
The touchstone of any new system must still be the old and simple test: is it fair'? The aim of the Bill is fair. I have doubts in certain areas, but my overall comment reflects my faith in my noble friend the Minister's good intentions in bringing forward the Bill.
What do we mean by fairness? In my view, we do not mean setting up as many obstacles to conviction as possible. Fairness does not just mean fairness to the accused. There are other strong interests to be considered: the interests of victims, witnesses, juries and public confidence in our legal system. We have to devise and continue to evolve the best process we can that protects the innocent but enables the guilty to be convicted. I agree with those who have suggested that the procedure should be as efficient, focused and transparent as it can sensibly be made.
In approaching that task, there are certain immutable principles. Clearly, the burden of proof must remain firmly on the prosecution. We should always, too, weigh the scales if in doubt in favour of preventing wrongful conviction. For all that, there is absolutely no reason why a defendant against whom a case is properly advanced on cogent evidence should not co-operate in the trial process so that the true issues can be put before the jury as simply and clearly as possible. I have found it interesting in this debate that all the speakers so far have endorsed that approach.
I support the Bill with greater pleasure because I have not always thought that the Government went about dealing with the Royal Commission's recommendations in wholly the right way. I should have liked to see the recommendations introduced as a package and not piecemeal in separate legislation across three different Sessions. I disagreed strongly last year with the erosion, contrary to the Royal Commission's recommendation, of the right of silence which protects the accused following arrest. I believed, and still believe, that no inference should be drawn against anyone who fails to answer questions in the police station without even having been given the opportunity to take legal advice. Indeed, since that change in the law was enacted, the noble and learned Lord, Lord Lowry, the former Lord Chief Justice of Northern Ireland, whom I am glad to see in his place, has described the dangers of the change in a thoughtful lecture in terms which should give anyone food for thought.
By contrast, I have long thought that there should come a stage when a properly advised defendant is required to set out the broad nature of his defence. It 489 also seems reasonable to ask for an indication in general terms of those issues raised by the prosecution upon which there is no dispute. The purpose of a fair trial is not to enable a defendant to require witnesses to be called unnecessarily, or to thrash around in the hope that some point may just turn up which impresses, or even confuses, the jury. For me the issue is, and always has been, the stage at which the obligation should arise of ensuring that the defence has enough knowledge of the prosecution case and proper legal advice to be able to respond effectively.
That leads me to raise one or two points in that area with my noble friend the Minister. It is fundamental to the Bill's operation that the defence must have access to proper legal advice. Otherwise I do not believe that it would be right to ask the defendant to disclose his defence. We would lack the equality of arms of which the noble Lord, Lord McIntosh, spoke. I agreed with much of what he said. I should be grateful for confirmation that it is inherent in the procedure that a defendant must have access to legal advice.
The second point relates to one already commented upon by noble Lords; namely, that Clause 3, the so-called primary provisions of disclosure, begins after much has already taken place in the investigation and prosecution process. It seems to me implicit in Clause 3 that the operation of the code which we have yet to see will have provided that by the time Clause 3 comes into force, and all the clauses which succeed it in effect, the defence will have had served upon it the evidence upon which the prosecution relies and a clear statement of the prosecution case. Otherwise, it is fanciful that the prosecution can fulfil what has rightly been described as the onerous obligation of disclosing any evidence which might undermine its case.
I should have liked to see the code of practice. I know that all noble Lords wish to see it early on so as to consider it in the proceedings on the Bill. It may also be for consideration whether the code, which will contain highly important procedural provisions governing a fair trial, should be subject to the approval of Parliament. Obviously that is one issue which the Delegated Powers Scrutiny Committee will consider. Since, as a member of that committee, I shall have to form a view, I shall not form any view today but will hope to advise the House by the Committee stage. It is a code, it seems to me, which could ultimately affect the liberty of the subject.
Most of the other points that I intended to make have already been made. I agree with the noble Baroness, Lady Mallalieu, and the noble Viscount, Lord Runciman, that disclosure under Clause 3 must be made early. There will not be many defence lawyers wishing to advise their client on a plea until they have had the prosecution statement under Clause 3. I assume also that the material which the prosecution does not intend to use will, as my noble friend the Minister indicated, be identified in a schedule. Without that, it would not be very helpful.
Perhaps I may touch on a point that has already been made. If the defendant amends or adds to his defence statement I assume that the ability to apply for 490 disclosure under Clause 8 will apply equally to the amended defence as it did to the original defence.
In raising detailed points, I am in no sense unconscious of the very considerable duty that the Bill places on the prosecution. I welcome that. However, there is one clause which seems to me particularly onerous, although welcome. Under Clause 9, the prosecution has the obligation to keep under pro-active review all material in case there may be something helpful to the defence which has not been disclosed. That is a proper and valuable contribution towards a fair trial.
There are other aspects of the Bill of which I warmly approve—the regime for preparatory hearings; the provision for pre-trial rulings about questions of law and the admissibility of evidence; the provisions in Clauses 38 to 41 for a retrial; and, not least, the prevention of injustice by precluding the reporting of unjustified smears made in the course of pleas in mitigation. Perhaps I may also point out that such unfair assertions can also be made in cross-examination. I recognise that that cannot be dealt with in legislation but it means that the Bar must continue to take very seriously its ethical obligation to avoid abusing the proper licence of cross-examination.
Finally, I thank the Minister for the attention that has been paid to the responses to the consultation paper. Some of those responses, including that of Justice, the all-party law reform group, were very concerned about the initial proposals put forward. Many of those concerns have been met. It is most encouraging when the consultation process is used so constructively and when the views of those with a genuine interest in promoting a fair system of criminal procedure are listened to. Perhaps I may add that Justice is most willing to debate its remaining anxieties with my noble friend the Minister or her officials. I thank the Home Secretary and the Minister for the constructive way in which this most important issue is being handled.
§ 5.2 p.m.
§ Lord Ackner
My Lords, I am most conscious of the fact that in relation to recent legislation and Starred Questions, I have been less than a comfort to the Minister. However, I hope to do better in future and I can begin by saying that, in large measure, I warmly support the Bill. As has been pointed out, it essentially implements the proposals and recommendations of the Royal Commission.
So many points have been adequately covered and therefore I wish to deal merely with the question of the defence providing advance disclosure. I accept the way in which the issue has been succinctly stated in Chapter Six, paragraph 59 on page 97 of the Royal Commission report. It states:If all the parties had in advance an indication of what the defence would be, this would not only encourage earlier and better preparation of cases but might well result in the prosecution being dropped in the light of the defence disclosure, an earlier resolution through a plea of guilty, or the fixing of an earlier trial date. The length of the trial could also be more readily estimated, leading to a better use of the time both of the court and of those involved in 491 the trial; and there would be kept to a minimum those cases where the defendant withholds his or her defence until the last possible moment in the hope of confusing the jury or evading investigation of a fabricated defence".I submit that that puts it all in an admirable nutshell.
However, I am concerned about the terms of Clause 5(3). Perhaps I may remind your Lordships of how the question of disclosure was contemplated in the Royal Commission report. Paragraph 68 on page 99 states: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".However, Clause 5(4) of the Bill states:For the purposes of this section a defence statement is a written statement—(a) setting out in general terms the nature of the accused's defence".That would seem to fit in with what the Royal Commission set out rather briefly. However, subsection (4)(b) states:indicating the matters on which he takes issue with the prosecution, and(c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution".That is a big extension of what was initially proposed. It is really assimilating in this regard the criminal procedure largely to the civil procedure. If that is to be done—and, for the reasons set out in the paragraph which I read at the outset of my submissions, I do not criticise the doing—it is essential that the prosecution provides a statement of the prosecution case. How else can one indicate the matters on which one takes issue with the prosecution and the reason why one takes issue with the prosecution?
I do not suggest that it is necessary to set out with particularity all that which is to be found in Clause 24, where one is dealing with preparatory hearings. Clause 24(5) sets out five matters, the first of which is:the principal facts of the case for the prosecution".I see no difficulty in a proper summary being provided so that the defence can then focus upon it. If that is not done any criticism which the prosecution hereafter may make of the defence's inadequate statement can be so easily met by, "I thought that was all that was needed", or "I didn't understand that this was what you were saying. You never set it out in any detail".
A further question arises. When can use be made of that statement by the defence by way of a prosecution attack on any variation which may occur? Again, the Royal Commission took that very point in mind at paragraph 61. It stated:objection might be that requiring the defence to disclose the substance of their case when they wish simply to rebut the prosecution case gives the prosecution an unfair advantage, since they can use what is disclosed by the defence to strengthen their case.An example would be where a person is charged with assault and the defence decide before the trial that their reply will be that the defendant acted in self-defence. After the prosecution witnesses 492 have been heard, however, it may become apparent that the prosecution have failed to prove that a blow was struck. In such a situation the defence may well be able to submit successfully that there is no case to answer. Such a submission might, however, be precluded if they had already disclosed a defence of self-defence and the prosecution were able to refer to that at the trial as indicating that the defendant implicitly admitted that a blow had been struck.This objection can, however, be met in one or other of two ways. The first is to allow the prosecution to refer to the disclosed defence and seek to exploit any subsequent change of direction by inviting adverse inferences to be drawn. The jury will still be free to accept the defence's reasons for the change. The alternative is to provide that any defence disclosed in advance of the trial should not be disclosed to the jury until the defence, or an alternative, is advanced at trial. That would ensure that the defendant was not prejudiced by disclosure before the trial and that the evidence led by the prosecution could not include anything disclosed by the defence. Since it seems to us more consistent with the principle that the burden of proof should lie upon the prosecution, we recommend the second alternative".If one goes to Clause 25(4), one sees that there is a prohibition upon any statement which emanated from a preparatory hearing being referred to or disclosed at the trial without the permission of the judge. There does not seem to be any reflection of that in Clause 5.
Those are my points with regard to defence disclosure. I was going to draw attention to the important omission in connection with third party disclosure but I am delighted to hear from the noble Baroness that that is to be remedied.
The only other point that I wish to make is that while I support the provisions dealing with acquittals tainted by the accused's interference with the jury or witnesses, it occurs to me that by parity of reasoning, there should be a similar provision for acquittals obtained by the accused's own perjury. If that can be established, it is no better an acquittal than the one which resulted from the tainting of or interference with the jury or witnesses. Those are my submissions to your Lordships and, as I said at the outset, I basically support the provisions of this Bill.
§ 5.13 p.m.
§ Lord Campbell of Alloway
My Lords, no principle of this important Bill has been called into question by any noble Lord. It is a timely initiative on which the Government are very much to be congratulated.
In this unique forum for debate, there is little doubt that amendments will be introduced which will improve the Bill's intendments. When she is able to do so, the Minister always keeps an open mind to constructive criticism. Therefore, the hope is that the Bill will leave this House in better shape than it is today.
The noble Viscount, Lord Runciman, truly said that there is no controversy as regards principle. The Bill affords an important contribution to the administration of justice, the crux of which is a fair trial. It must be fair not only to the accused but also to the Crown and to the public interest, which includes the victim.
In particular, the authoritative acceptance by the noble and learned Lord the Lord Chief Justice is more than ample commendation of the importance of this Bill and in particular, the disclosure principle in Part I, the criminal investigation provisions in Part II, which are 493 again supported by the noble and learned Lord, the preparatory hearing provisions in Part III and the quashing of tainted acquittals under Part V, again, as accepted, subject to safeguards, by the noble and learned Lord.
There are anxieties and those anxieties have been advanced most eloquently by the noble Baroness, Lady Mallalieu. I share those anxieties. There is a temptation to withhold prosecution evidence, to which the noble Baroness referred. That could be met by introducing a signed, full, detailed schedule; and there should be some sanctions. I believe that my noble friend Lord Alexander of Weedon suggested that there should be discretion for prosecution counsel to afford total disclosure.
Furthermore, there is the requirement that the defence should disclose its case before the prosecution does so. As has been pointed out by many noble Lords, including the noble Viscount, my noble friend Lord Alexander, the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Ackner, that makes a total nonsense. It is a matter which will, I hope, come out in the wash.
I take the point which was made, I believe, by my noble friend Lord Alexander that there should be legal advice. I am not sure that that always should be so and that there are not circumstances in which it might not be so. But there is no doubt that as a general principle, legal advice should be given before the defence puts forward its case. Perhaps those in charge of granting legal aid will take note of that.
There is the absence of any provision to enable the defence to make supplementary statements and thus to avoid adverse comment. That is a matter of concern, a concern which I share.
The Bill is not specific about the code of practice. It is essential that the code should be examined properly by Parliament. Under Part II, Clause 18, that code of practice has a legal status of efficacy as it is made by statutory instrument. But there is no requirement whatever in the Bill as to what the code should provide and there is no requirement whatever for parliamentary approval. It gives a very wide remit to the Executive to legislate in that way and it is a matter which I hope will receive further consideration. I ask the Minister whether that was intentional and if so, why, or whether it was just an omission. I seek some form of reassurance from my noble friend on that matter. I cannot for the life of me see why we should not be able to have a draft of the code of practice for consideration in Committee within a matter of two or three weeks; or should it be a schedule to the Bill? It is a most important document. With respect, I suggest that it would be most unsatisfactory to debate a Bill which has an implementing provision of that order without knowing what is in it.
The final matter that I should like to mention concerns the question of applications to quash the indictment. I shall be very brief. They are made under the inherent jurisdiction. Under Clause 24 and the "powers specified", there would be no power to make such an order. The application would presumably be 494 made under Clause 30(1)(b) as a question of law arising in the case. Under Clause 31 such a ruling would be binding, but there is no appeal. I ask, respectfully, whether consideration could be given to introducing an appeal against the grant or refusal of an application to quash counts in an indictment under the inherent jurisdiction.
§ 5.21 p.m.
§ Lord Lester of Herne Hill
My Lords, I am sure that it would be wise for any junior judge sitting in a court presided over by the Lord Chief Justice or by the noble and learned Lord, Lord Ackner, simply to say, "I agree", rather than to deliver a separate judgment. I feel extremely diffident in making a speech at all on the subject of this Bill. My qualifications for doing so are meagre. I am not a criminal practitioner and have argued only one criminal case in 25 years. It happens to have been a case in which the very late disclosure of evidence by the prosecution narrowly avoided a gross miscarriage of justice at the 11th hour and the 50th minute.
I have no qualifications of the kind that, for example, the noble Baroness, Lady Mallalieu, or the noble Lord, Lord Campbell of Alloway, have, to be able to speak on the basis of real, practical experience about the needs of the prosecution and of the defence. I sat as a recorder for some years but that, again, did not really equip me to do more than learn the rudiments of criminal procedure without understanding the reality at the coalface, faced by those who were practising and arguing before me.
Perhaps the fact that I am not a member of the criminal Bar is helpful in at least one respect. It means that I approach the Bill with a completely open mind but not, I hope, with a completely empty mind in considering whether it promotes the better administration of justice; that is to say, whether it will make criminal trials more efficient without putting in jeopardy the overriding need to ensure that trials are fair and protect the fundamental right of the accused to the presumption of innocence.
The constitutional principles upon which our traditional common law and statutory rules are based have been mentioned by several noble Lords. They are always worth repeating on occasions of this kind. They are anchored of course in Articles 5 and 6 of the European Convention on Human Rights. In the determination of any criminal charge, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial judge and jury. Everyone is presumed innocent until proved guilty according to law. Everyone must have adequate time and facilities to prepare his defence, including, where necessary, adequate legal aid. As several noble Lords have emphasised, there must be a fair balance and real equality of arms in the conduct of the trial. As the noble Lord, Lord Alexander of Weedon, reminded us, there are also other interests; for example, the interests of the victims of crime and of the general public in being effectively protected against crime and its consequences.
The pressing and legitimate concerns of the public to secure the conviction of the guilty must be met by a modern criminal justice system. As all noble Lords who 495 have spoken today have recognised, those needs must be met in a manner which does not breach our basic constitutional principles of fairness.
Like everyone who has spoken, I welcome the general thrust of the Bill although, like the noble Baroness, Lady Mallalieu, I begin with a bias in favour of leaving it to the senior judiciary to develop the common law and to fashion procedures in a manner which is carefully tailored to securing the due administration of justice, unless it can be demonstrated that legislative intervention is really called for.
However, like the Royal Commission of the noble Viscount, Lord Runciman, and like the noble and learned Lord the Lord Chief Justice, and all speakers this afternoon, I recognise that the criminal justice system is in urgent need of improvement. My noble friend Lord Rodgers of Quarry Bank, referred to "playing the game". I hope that my criminal brethren will forgive me if I say that the conduct of a criminal trial often appears little more than an elaborate forensic game between barristers. The criminal justice process takes place in a wholly adversarial atmosphere. To outsiders, prosecution and defence often appear as enemies in a war, disclosing relevant information in advance only reluctantly, rather than playing with cards face upwards on the table. That is the bias, I suppose, of a civil lawyer approaching the criminal process.
As my noble friend and others indicated, time and money are wasted as the police and prosecution comb through vast quantities of material to isolate the evidence which the defence needs to support its case. Issues arise at trial which need to be resolved in the absence of the jury, causing disruption and inconvenience as they are sent away and adding to the length and cost of the proceedings—perhaps an inevitable price.
The Royal Commission of the noble Viscount, Lord Runciman, recognised that it is right that antiquated and unnecessary bureaucracy should be dismantled and that unnecessary costs should be avoided where possible, without undermining the interests of justice.
The aims of the Bill are wholly legitimate. We welcome the extension, under Part III, of the system of preparatory hearings in serious fraud cases to other complex and potentially lengthy cases. We also welcome in broad terms the Part I proposal that the defence should disclose something of its case to the prosecution before trial.
As noble Lords have indicated, other elements of disclosure do, however, give cause for concern. Since the publication of the Runciman Report in July 1993, the common law of disclosure has not stood still. The law is recent, dating from the decision of the Court of Appeal (Criminal Division), presided over by the Lord Chief Justice, in the case of Keane in 1994. It is considered by experienced practitioners, as one would expect, to be well worked out and modulated, containing essential safeguards for the accused. Like the noble Baroness, Lady Mallalieu, I am especially impressed by the fact that those of the eminence of two former leading Treasury counsel take the same view. The present 496 system is, I think, a finely calibrated system, applied wisely and flexibly by judges exercising their discretion on a case-by-case basis under the wise leadership of the Lord Chief Justice.
Parliament was persuaded last year to make substantial alterations to the so-called right to silence in the Criminal Justice and Public Order Act. I share the fears of the noble Lord, Lord Alexander of Weedon, and others, that those changes may risk tilting the balance unfairly against the accused and may erode the presumption of innocence. It would not be helpful to reopen that debate but it is clear that there have already been alterations instituting a degree of defence disclosure in advance of trial.
We on these Benches support the Royal Commission's recommendation that the general framework for prosecution disclosure should be laid down in primary legislation accompanied by codes of practice. But it is, I think, a matter for great regret that in the Bill the Government have not chosen in some respects to follow the clear and just proposals in the report of the commission of the noble Viscount, Lord Runciman. I shall refer quickly to some of the matters of concern which I believe many of your Lordships have mentioned this afternoon.
The first relates to some of the impenetrable drafting language chosen in the Bill. The noble and learned Lord the Lord Chief Justice referred to clarifying by statute, but the text of the Bill is, as the noble Lord, Lord Renton, politely indicated, not altogether satisfactory in certain respects. Part III which relates to the police duty of disclosure, is in my view the least satisfactory in this respect. I shall give one example. Let us suppose that a defendant wishes to know the extent of the vital duty of the police to disclose relevant material to the prosecution. He begins with Clause 16. This tells him that the detailed provisions will be contained in the code of practice. The Bill then whets his appetite for the code by stating that Clause 17 gives examples of the kinds of provision which may be included in the code. He reads on, eagerly awaiting guidance in the Bill. He reaches Clause 17(3) which states,material … of a description prescribed under this subsection".It seems he is getting warmer. Imagine his disappointment when he reaches the end of the subsection and there is nothing at all: no list of prescribed material and no guidance. He, and indeed this House, will simply have to wait, like Mr. Micawber, for the Secretary of State's code to turn up.
The complex nature of the Bill will have particularly wide-ranging and potentially even disastrous implications for a really significant number of vulnerable defendants if the Government's separate proposals in their Green Paper on legal aid are implemented in their current form. The noble Lord,Lord Alexander of Weedon, explained that defendants must surely have effective access to legal advice if this Bill is to be workable for the most vulnerable defendants. The Government's proposals would of course cap the amount of legal aid available. Although I do not always agree with the General Council of the Bar, I strongly agree on this occasion that the Government's plan would mean that a large number of defendants who 497 would otherwise qualify for legal aid in the interests of justice and on financial grounds would go unrepresented. Unaided, these vulnerable individuals would find it impossible to use the Bill's complex procedures to protect the basic rights of the defence. That seems to me to be a crucial problem because it could mean that the Bill would actually lead to serious miscarriages of justice among the weak which no one would wish.
The second area of concern has been emphasised by at least eight noble Lords, and that is the non-publication of the draft code of practice. The Royal Commission recommended in Recommendation 127 that codes of practice should be published in draft,so as to give scope for the widest degree of consultation on their precise terms".How, I ask myself, can there be the widest degree of consultation, within and beyond Parliament, unless and until the Home Secretary publishes a draft code of practice? This is an area par excellence in which the devil is in the detail. Perhaps it is impractical to include the detail of the code on the face of the Bill, but I very much share the views expressed by the noble Viscount, Lord Runciman, and many others that the code will be published swiftly this week in time for adequate consultation before we reach the Committee stage. I very much share also the hope of the noble Lords, Lord Alexander of Weedon, and Lord Campbell of Alloway, that it might be possible for the code to be scrutinised as delegated legislation—as proper legislation because it affects the liberty of the subject so vitally. The code of practice will determine what is disclosed by the investigating authorities to the prosecution and defence, and it will have a critical effect on the rights of the accused.
The third point I can deal with briefly; it is disclosure from investigating authorities to the prosecution. The establishment of the commission of the noble Viscount, Lord Runciman, was of course partly prompted by the series of decisions by the Court of Appeal quashing unsafe and unsatisfactory convictions. One crucial safeguard, as the Royal Commission saw it, was that if the present system of disclosure was to be scrapped, there must be a proper system in place to ensure that material which is unhelpful, as well as that which is helpful, is given by investigators to prosecutors. As the noble Viscount, Lord Runciman, has emphasised with such force today, there must be effective sanctions on investigating authorities to disclose all material in their possession.
I agree with the noble Baroness, Lady Mallalieu, that we must ensure that the code, when we are able to scrutinise its terms, places a duty upon investigating authorities to retain, to record, and to disclose to the prosecution all information obtained in the course of investigation. I understood the Minister to say in her opening speech that it is indeed the Government's intention that the police will disclose all evidence to the prosecution. If that is so, that is a welcome assurance and I would suggest that it needs to be made clear on the face of the Bill.
My fourth point regards the provision of lists by the prosecution to the defence. The Royal Commission was rightly concerned to ensure that the defence is aware of 498 the existence of all relevant evidence before the trial. The noble Viscount, Lord Runciman, emphasised that point today. To that end his commission underlined the importance of the current system of lists. The prosecution must show the defendant material which may be helpful to the defence case or unhelpful to the prosecution case. Crucially, the prosecution must give him in addition a list of any other material obtained during the course of the inquiry. This is surely what fairness requires. The prosecution has at its disposal the machinery of the police with their considerable and necessary resources and necessary coercive powers. The prosecution also has access to specialist services such as those of forensic scientists.
The defence has none of those resources and is heavily reliant on the material which the prosecution discloses to it. The principle of equality of arms requires, I suggest, that both sides have equal access to all the evidence. It is also an essential element in preventing miscarriages of justice. The powerful and wise speech of the noble Baroness, Lady Mallalieu, with her great professional experience is, I think strong testimony to that point. It is therefore in my view essential that the defence receives a full list, in outline form, of all the evidence against it; otherwise it will be unaware as to the scope of the evidence that exists.
My other point concerns defence disclosure. In principle I am in favour of the proposals on defence disclosure in Clause 5. Advance indication of the general substance of the defence will encourage earlier and more effective preparation of criminal cases generally. When it comes to disclosure, the prosecution will be better able to determine which documents are helpful to the defence if it knows something of the general nature of its case. No one has spoken against those proposals today, but the House may wish to be satisfied, as the noble Baroness, Lady Mallalieu, indicated, that the Bill as drafted does not tilt the balance against the defence unfairly in that respect.
There have been some ill-informed attacks upon the Bill outside this House. My noble friend Lord Rodgers of Quarry Bank indicated that those attacks have been encouraged to some extent by populist party political statements made by the seaside at autumn conferences. The critics of the Bill are right to be concerned to preserve our ancient birthright of civil liberties and to protect everyone against the risk that unnecessary alterations in criminal procedures will encourage miscarriages of justice. However, their criticisms must be well-founded.
The Bill is welcome. It is imperfect in some respects, but it is not nearly so bad as some outside the House have suggested. It needs to be improved in Committee in several essential respects to protect the rights of the accused without unduly hampering the effective conduct of police investigations and prosecutions. We must ensure that the Bill preserves a fair balance in accordance with the rule of law. That is our endeavour.
§ 5.40 p.m.
§ Lord Williams of Mostyn
My Lords, there has been a good deal of comment about what is not in the Bill. 499 I begin by commending the Minister on what she said at the outset. When she indicated that there were three areas which were not on the face of the Bill those more suspicious than myself might have been given cause for alarm. The particular matter on which I wish to commend her is the question of the child witness in criminal cases. The Pigot Report is still not part of our law in full. It is a commonplace that everyone who deals with child abuse victims recognises that in many ways we do them great harm by our criminal justice system, which is essentially designed for adults and not for children.
The purposes for which we all seem to contend depend on at least the following. Criminal trials should be fair, efficient and under the supervisory control of the judges, and in particular the present Lord Chief Justice, who more than any single individual has begun to restore public confidence in a vessel which was deeply holed and almost sinking.
Secondly, there needs to be a proper and considered balance between the power of the state and the interests of the individual.
Thirdly, recent experience demonstrates that precisely defined structures work better than uncontrolled discretion if the latter is left to either the police or prosecution. If one wants precisely defined structures one needs to look at the small print of the code. The code should ensure that a single identifiable and identified police officer is responsible for certifying that all material has been passed to the Crown Prosecution Service and that a single identified responsible officer of the Crown Prosecution Service has to certify that prosecution disclosure obligations have been met. If we do not have that fine print we shall not remedy our present misfortune.
Finally, I suggest that not every criminal case necessarily requires the same treatment. We are not able to apply any principle of scrutiny fruitfully to this Bill because of the absence of the code. I agree with the noble Lords, Lord Campbell of Alloway and Lord Renton, on those matters. We do not always agree on political matters, but we almost invariably agree on matters of legal principle. The noble Lord, Lord Campbell of Alloway, is absolutely right to say that we cannot do our work without seeing the code first. The noble Lord, Lord Renton, is right to suggest that the drafting of the Bill is unnecessarily turgid, although he did not use such a harsh description. That could have been cured had the code been provided before we began our discussions.
I wish to raise one or two matters of detail, which I shall keep as brief as possible. Clause 1(1)(a) states:This Part applies where a person is charged with a summary offence in respect of which he pleads not guilty".If I understand the scheme correctly, detailed disclosure in the magistrates' court commences only on a plea of not guilty. I suggest that detailed disclosure should begin before that. Is there any reason why there should not be disclosure before the plea, following or accompanying a statement of the prosecution case, as so many noble Lords have recommended?
Is every plea in respect of a summary offence in a magistrates' court to require automatic disclosure? I merely raise the question. Summary offences are 500 sometimes of the most minor kind. Even though I have not been cautioned I can confess to at least one—riding my bicycle without a light. Do we really need automatic disclosure in those circumstances?
In practice, as my noble friend Lady Mallalieu indicated, if disclosure is to operate only after a plea of not guilty, the device used by solicitors and counsel will be to advise their client to plead not guilty simply in order to have automatic disclosure. That will clog up the system rather than make it more efficient.
The early disclosure of the prosecution statement has been supported by everyone who has spoken today. An extremely important associated matter is that raised impressively by the noble Lord, Lord Alexander of Weedon. It will not be possible to run the system if a defendant does not have legal representation as of right. If as old and wise a bird as the noble Lord, Lord Renton, finds the drafting turgid, what is to happen to the legally illiterate defendant without any legal advice? If we go along the route which does not provide legal representation as of right in those circumstances, then next year, the year after, or the year after that, we shall have another inquest on what has gone wrong. It is not possible for a lay person to deal adequately with these new obligations without legal assistance.
What is to be done about Clause 3(6) under which material must not be disclosed? No discretion is allowed, and no fine consideration by the prosecution and the CPS, if necessary with the overall guidance of the Attorney-General. Material must not be disclosed to the extent that the court believes that it is not in the public interest to disclose it. What is the public interest to comprehend? Is it anticipated—and I suggest that it should be—that the Attorney-General should at least indicate that he will provide guidelines for the Crown Prosecution Service? The courts might wish to consider such guidelines on these occasions. That provision is extremely important because it takes away discretion and makes it mandatory that non-disclosure should follow.
Clause 9 is not sufficient. As indicated by the noble Lord, Lord Alexander, the clause imposes the continuing pro-active obligation to review and decide whether or not there should be further disclosure. That stops too soon, before the accused is acquitted or convicted. What about the material which is re-reviewed after a wrongful conviction? Should there not be a continuing obligation there? The same point, slightly modified, attaches to Clause 11. The point of principle is the same, so I shall not go into the matter further.
The noble and learned Lord, Lord Ackner, asked what use may be made, and at what stage of a criminal trial, of a statement made by way of obligation by a defendant. We have had arguments in the past about whether a prosecutor could open an alibi statement in a criminal case or the absence of one. Are the inconsistencies to be allowed as part of an opening so that a statement which has been forced out of a defendant under the new statutory regime could be used as part of the affirmative case brought forward from the first moment of a criminal case? The answer will be that it is a matter for the discretion of the trial judge. But is that situation contemplated by the Government? These 501 are small questions of fine detail, but we need to know the answers before we can come to a considered conclusion about the merits—there are some—of the Bill.
I turn to Clause 22. I am sorry to say this because I believe that it is almost the only occasion when I have dissented from the Lord Chief Justice. However, I am bound to say that what my noble friend Lord McIntosh of Haringey said has a good deal of validity. If one is to have a preparatory hearing with binding rulings and some degree of practical utility, there should be a presumption at least, not a binding obligation of necessity, that the judge trying the preparatory hearing is to be the trial judge; and a presumption which ought to be an ethical duty on a member of the Bar or other advocate that counsel who is instructed for the trial must attend at the preparatory hearing. Preparatory hearings would otherwise be of little value. As practitioners, we have all appeared before judges who assured us that they had read all the papers, and the first question uttered by the judge indicates that the contrary may be the fact. Part of the answer has to be less reliance on part-time judges who come and go like butterflies from a flower. If we have a regime which by and large works well, with liaison presiding judges at designated court centres, there should be the presumption that the judge conducting the preparatory hearing will be the judge who tries the case. If rulings are made which are binding, it is not particularly helpful in practice Lo have different judges considering different rulings at different stages.
The final point on which I touch—so many matters have been dealt with—relates to Clause 14(2). I echo what the noble Lord, Lord Alexander of Weedon, said. It is unambiguous in the Bar code that no barrister may be used by a client as a tool or device to make allegations or assertions against any other party, whether witness, complainant or person who has had no specific connection with the trial, unless he or she has satisfied himself or herself, first, that there is reasonable foundation, and, secondly, that it is proper in the general administration of justice. The noble Lord is right to point out that assertions in cross-examination, or assertions that a client may make as part of an examination-in-chief, have the same distressing consequences as assertions made in mitigation. Therefore this measure is the first step. I am not sure that it is the cure-all that the Government may presently believe.
We must all wait for the code. The Bill is nothing without the code. The work of the commission of the noble Viscount, Lord Runciman, will be dust and ashes unless the code is effective and, above everything, unless the code is carefully scrutinised by those of your Lordships who have both interest and experience in the administration of the criminal justice system.
§ 5.53 p.m.
§ Baroness Blatch
My Lords, if it is not too embarrassing, perhaps I may open by wishing the noble Baroness, Lady Mallalieu, a very happy birthday. I am sorry that she has had to spend it cooped up in this great place.
§ Baroness Mallalieu
My Lords, perhaps I may ask the noble Baroness whether it is not too late to amend the Bill to ensure that people's ages after a certain date are not subject to disclosure.
§ Baroness Blatch
My Lords, the noble Baroness will note that I did not mention a certain date; I just wished her a very happy birthday.
The noble Lord, Lord Lester, confessed, somewhat modestly, that his credentials for taking part in the debate were perhaps not adequate. I have to admit in a confessional mode to being the least learned of all who have spoken in the debate, and that includes the noble Lord, Lord Lester.
It has been an interesting and thorough debate. I have sought to provide your Lordships with a comprehensive account of the Bill. I have noted the many valuable points made in response, and the general welcome given to the Bill. In the time remaining I shall seek to address as many of those as possible. If I fail to respond to any particular points now, and if it were appropriate, I shall write to noble Lords before the Bill goes into Committee.
The noble Lord, Lord McIntosh of Haringey, referred at the outset to the principle of the defence having access to all relevant material. I accept that the accused needs access to material which might help him. At the same time there needs to be a reduction in volume of unnecessary material which currently has to be disclosed. The difficulty is in striking the right balance. The Bill aims to do that, as I have explained. Nevertheless we shall obviously wish to consider the detailed amendments which the noble Lord will table in Committee.
The noble Lord, Lord McIntosh, referred also to the detailed defence disclosure. I understand concerns about the details of defence disclosure and I look forward again to debate in Committee. However, I wish to make two points today. First, if the accused indicates only the general nature of his defence it will be difficult for the prosecution to know what additional material might assist the defence. Secondly, the accused will know the prosecution case against him before he is compelled to make disclosure. Clause 5 refers to service of the prosecution case, among other things, as a pre-condition of defence disclosure.
The noble Lord, Lord McIntosh, also referred to the code of practice. Almost everyone who spoke in the debate has mentioned the disadvantage of not having the code before the House at this moment. I absolutely understand the desire to have the code. At this moment I cannot be absolutely precise about exactly when it will be available. However, I shall keep all noble Lords up-to-date with the progress of that code and will ensure that everyone knows exactly when it is ready for publication.
The noble Lord, Lord McIntosh, also referred to preparatory hearings and the continuity of judge in such cases. In evidence to the Royal Commission on Criminal Justice it was suggested that preparatory hearings would be effective only if the trial judge presided over them. That that is so may be supported by the Divisional Court ruling that a change of judge between a preparatory hearing held under the Criminal Justice Act 1987 and proceedings in front of a jury could be accepted only in 503 exceptional circumstances. The Government believe that that requirement should continue. Such continuity of judge is clearly of value to the type of long and complex case to which the proposal applies. However, the noble and learned Lord, Lord Taylor, the Lord Chief Justice, commented that it was his hope that the use of preparatory hearings would not become commonplace. I wish to assure the House, and indeed the noble and learned Lord, that the Government intend that preparatory hearings should be available only in cases of such apparent complexity or potential length that substantial benefits are likely to accrue.
Most of the comments of the noble Lord, Lord Rodgers of Quarry Bank, referred to Clause 42 in Part VI. He asked whether restrictions on reporting of unsubstantiated allegations cover all media. It is certainly our intention that the provisions should prohibit the reporting of allegations, whatever the medium in which they are contained.
The noble Lord asked in how many cases it is likely that a retrial will take place. We do not have reliable statistics to indicate the extent of the problem. However, it is clear from anecdotal evidence that interference with witnesses and jurors can be a serious problem in some cases. We believe that it is right therefore to ensure that the guilty are not able to avoid conviction if it later comes to light that they, or others on their behalf, have, for example, threatened or intimidated witnesses or jurors in order to secure an acquittal. The noble Lord asked how judges will be able to decide whether, but for such interference, the accused would have been convicted. The Bill requires the judge to be satisfied that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. The circumstances will, of course, vary from case to case. It may be that the witness who was intimidated gave evidence which was merely of peripheral relevance to the case. In such circumstances, the judge, who will have heard the details of what happened during the trial of the intimidation offence, may well conclude that there are no grounds for interfering with the original verdict. In other cases, it may be clear to the judge that the witness's evidence was so central to the case that the acquittal is unsafe.
The noble Lord also referred to Clause 38(5) which sets out the circumstances in which the judge may decide that it would not be right to take proceedings against an acquitted person. The noble Lord asked what that would cover. The Bill makes it clear that the lapse of time may be a reason for not re-trying an acquitted defendant. Other reasons might be that crucial witnesses in the original trial had since died or perhaps that the defendant himself was already serving a lengthy sentence for some other offence.
The noble Lord, Lord Rodgers, also referred to the West trial and posed the question which must be on the minds of many people, both inside this place and outside. He asked whether the Bill should be used to introduce a restriction on payments to witnesses. I have to say, as a personal aside, that we need to be careful about using the Bill in any precipitous way, without giving serious consideration to what I know is a complicated subject. Nevertheless, we share the concern which has been expressed about the behaviour of the press in that case. As the noble Lord, Lord Rodgers, said, my noble and learned 504 friend the Lord Chancellor and my learned friend the Attorney-General have called for reports. We will study the reports carefully to see whether more action could sensibly be taken.
The noble Lord, Lord Rodgers, referred to BMA concern about Part II relating to police surgeons and disclosure. I am not sure exactly what he has in mind, but I make the point that the code of practice in Part II is for the police and other investigators who will have to have regard to it. It does not bind any third party such as a medical practitioner. However, I shall look into the detailed point which was made before the Committee stage and I undertake to write to the noble Lord.
The noble Lord, Lord Rodgers, also referred to Part I and comparisons between the Royal Commission recommendations and proposals in the consultation paper and the provisions of the Bill. He said that it would be helpful to him to have an analysis in tabulated form before the Committee stage and I shall attempt to have that arranged and will place it in the Library of the House.
The noble Baroness, Lady Mallalieu, referred to the mode of trial. Clause 34 requires the court to indicate to the accused, before he gives an indication of plea, what the consequences of his plea will be. I understand that the court may proceed in the absence of the accused but only—and this is the important point—if he is legally represented. The noble Baroness and the noble Viscount, Lord Runciman, referred to the timing of primary prosecution disclosure. Ideally, it should happen as soon as possible, but I am afraid that it is not practicable straight after charges. The case will need to be prepared and the prosecutor will need time to decide what requires to be disclosed. The important point about timing is well taken.
The noble Baroness and the noble Viscount, Lord Runciman, referred to sanctions for non-compliance which should apply both to the prosecutor and the accused. The Bill requires the prosecutor to disclose material which he thinks undermines his case and to comply with any court orders in relation to disclosure. The sanction, if he does not do the latter, is that he may possibly have to abandon the case.
The noble Baroness, Lady Mallalieu, and other noble Lords referred to supplementary disclosure by the defence and whether that should be possible. It is possible for the accused to make supplementary disclosure, if he so wishes. He is required only to make defence disclosure at the appropriate stage. If we built in requirements for several stages of disclosure, cases would be much delayed in coming to trial.
The noble Baroness referred to the resource implications of the proposals. The provisions will create new burdens but they will also remove some existing burdens. As the noble and learned Lord the Lord Chief Justice pointed out, the effect of disclosure is that some cases may not come to trial at all. We believe that overall the system will be more efficient and fair.
The detail of material on the schedule of unused material was also raised by the noble Viscount, Lord Runciman, the noble Lord, Lord McIntosh, and other noble Lords. The schedule will set out a list of material held by the investigator but which does not form part of 505 the prosecution case. It will do so in sufficient detail to enable the defence to make a judgment about its relevance. I know that the point was made with some feeling during the course of the debate.
My noble friend Lord Alexander of Weedon referred to the continuing duty of prosecution disclosure. Clause 9 restates what is already required of the prosecution and I am delighted that my noble friend welcomed it. In response to a possible request from Justice or any other body that wishes to discuss the Bill either with my officials or with me, I can promise my noble friend that the door is absolutely open.
The noble and learned Lord, Lord Ackner, said that perjury should also be grounds for applying for a court order under Clause 38. We will consider whether any other offences relating to interference with the administration of justice should be included in Clause 38. No doubt we will return to it in Committee.
The noble and learned Lord and the noble Baroness, Lady Mallalieu, referred to the service of the prosecution case. I mentioned it in part, but in summary trials the accused will not have as much information about the prosecution case as in Crown Court trials. But he is not required to make disclosure and there is no sanction by means of inference at trial. The noble and learned Lord, Lord Ackner, referred to sanctions for departure from the defence case. The Bill provides that if the accused departs from his defence statement, an inference may be drawn but the court must have regard to the reasons for such a departure.
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.
My noble friend Lord Campbell of Alloway referred to Part II, the code of practice, and parliamentary procedure. The code is not subject to any particular parliamentary procedure, because unlike the police and criminal evidence codes of practice, for example, it is purely procedural. However, of course, we will await what the scrutiny committee has to say and consider it carefully.
§ Lord Campbell of Alloway
My Lords, will the Minister allow me to intervene for clarification? Under Clause 18 the code has legal efficacy as a statutory instrument. That has to be borne in mind; it is established unless it is amended.
§ Baroness Blatch
My Lords, between now and Committee stage the scrutiny committee will have a good look at the whole Bill and its procedures. No doubt, the committee will advise the House accordingly and we shall take seriously what it has to say and consider it.
506 My noble friend Lord Campbell also referred to an application to quash an indictment. I am grateful to him for raising the point. I can confirm that as regards preparatory hearings the Court of Appeal has held that the judge's power to decide any question of law or admissibility of evidence is confined to questions related to the purposes of the preparatory hearings as outlined in Section 7 of the Criminal Justice Act 1987. Applications to quash an indictment—for example, for abuse of process—do not come within these powers and do not therefore attract an interlocutory right of appeal. So far as binding rulings under Part IV of the Bill are concerned, I shall consider the point that my noble friend raised about appeals from such rulings and I shall write to him shortly setting out the Government's views on this matter.
The noble Lord, Lord Lester of Herne Hill, asked whether disclosure rules could be left to the senior judiciary and the common law. No. The courts have significantly developed the law in successive cases. There is no going back from that without legislation. In relation to the case of Keane, for example, the noble and learned Lord the Lord Chief Justice said that it would be helpful to the court in assessing the significance of prosecution material to have some information about the defence case, but the accused cannot be required to give this information.
The noble Lord, Lord Williams of Mostyn, referred to Clause 3(b) and asked how the public interest will be defined. The public interest test will not be changed by this Bill, which merely reflects the current understanding. The term will therefore continue to be interpreted as at present.
The noble Lord also referred to Part I and disclosure in magistrates' courts cases. Disclosure will be made only if the accused pleads not guilty. It would clog up the system seriously if disclosure were to be automatic in every case, even the most straightforward road traffic case where the accused wants simply to plead guilty and have done with it. It is not practicable to require disclosure before the plea because of all the work that the prosecution must do in preparing the case and deciding what needs to be disclosed.
I know that I have not done this debate justice; so many other points were raised. But I think I have covered most of the pertinent ones. Suffice it to say that we are committed to ensuring that the criminal justice system is fair, efficient and effective. I am grateful for the positive manner in which many of the provisions of the Bill were received. It is my impression that we have prepared the ground for a detailed, and I believe productive and constructive, Committee stage. I commend the Bill to the House.
§ Lord Campbell of Alloway
My Lords, would it be possible to postpone the Committee stage, or to give consideration, in view of what was said on all sides of the House, to postponing consideration of Part II in Committee, until we have the code of practice?
§ Baroness Blatch
My Lords, such questions are very much a matter for the usual channels. I am not in any position to respond one way or the other to that question.
On Question, Bill read a second time, and committed to a Committee of the Whole House.