Criminal Procedure and Investigations Bill [H.L.]

HL Deb 01 February 1996 vol 568 cc1558-610

3.39 p.m.

Report received.

Clause 1 [Application of this Part]:

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, if Amendment No. 1 is agreed to I cannot call Amendments Nos. 2 and 3.

Lord McIntosh of Haringey moved Amendment No. 1:

Page 1, line 8, leave out from ("applies") to end of line 20 and insert ("to—

1. (a) an indictable offence, or
2. (b) a summary offence.").

The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendments Nos. 11, 13, 21, 41, 43 and 95. The amendments are complicated, not because the idea behind them is complicated but because the structure of the Bill is complicated. The draftsman has chosen to take Part I of the Bill and divide it between those cases which are considered in magistrates' courts and those which are considered in the Crown Courts. There is nothing wrong with that. However, it means that when we try to make provision for cases which are summary offences, those which are triable—I am perfectly happy to continue when the House is prepared to be a little more silent. I was referring to those cases which can be treated either as summary offences or taken in the Crown Court and those which are indictable offences. Therefore everything that we say applying to all four aspects has to be provided in all parts of the Bill. There are separate provisions for those aged under 18 and those aged 18 and over.

The purpose behind the amendments is simple. It is to change the provision in the Bill that revelation of the case by the investigators to the prosecution and disclosure by the prosecution to the defence is triggered only when a plea of not guilty has been entered. The argument for the provision in the Bill is that there will be less work for the investigator—the police—and for the prosecutor if there is a reduction in the number of cases in which primary disclosure by the prosecution is required. That is an admirable objective. It is one with which we do not disagree. We, like the Government, wish to reduce the amount of work, and unnecessary work, for the police and prosecution.

However, we fear that the objective will not be achieved. That is reflected in the amendments. We have been in discussion with the Criminal Law Committee of the Law Society. The Government know that it is concerned about the provisions in the Bill in this respect. That body has authorised me to say that the advice which it would give to its members if the Bill were passed unamended is this: if there is any question about the adequacy of the prosecution case the client should be advised to plead not guilty in order to gain access to the prosecution case and in order that the case should be revealed by the investigators to the prosecution. That does not merely undo the possible savings which might otherwise occur as regards work for the police and investigators. It will clog up the courts. There will be a larger number of not guilty cases which may prove to be unfounded. Indeed, under those marginal circumstances they are likely to prove to be unfounded. The result will he the opposite of that which the Government anticipate in producing this formulation.

I assure the House that it is in a spirit of seeking to make the Bill work better rather than to change in any significant way the balance between prosecution and defence that we put forward the amendments. They are designed to avoid the danger of tactical not guilty pleas which we and many of those most involved in those cases in the courts fear will be the result of the Government's proposals.

At Committee stage we put forward amendments along the same lines although by no means in the same words. One of the Government's answers was that they would create problems of timing for the primary disclosure by the prosecution and that that would in itself cause delays and anomalies. I believe that these amendments take account of those objections and that the remaining objections put forward by the Government to the thrust of the amendments are of little value and do not override the primary purpose of the amendments and the need for such provisions in the Bill if the measures—we welcome them and want them to work—are actually to work. I beg to move.

3.45 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I must tell the House that there are serious defects with the amendments. Amendment No. 1 to Clause 1 states that Part I applies to an indictable offence or a summary offence. Because the only two kinds of offences are indictable offences and summary offences, this in effect says that Part I applies to an offence. As it stands I am afraid the amendment is meaningless. It may be intended to mean that Part I applies where an offence has been committed; or where an offence is being investigated; or where proceedings for an offence have been instituted. But the amendment does not say any of those things. And if it is concerned with the commencement of Part I, we have already catered for that in Clause 1(3) which states that Part I applies in relation to alleged offences into which no criminal investigation has begun before the appointed day.

The noble Lord appears to recognise that Part I must contain the wording of what is now Clause 1(1) and (2) because he reproduces it in Amendment No. 11 to Clause 4. It provides that the requirement to give the accused a schedule of unused material under Clause 4 applies where there is a summary trial and the accused pleads not guilty, or where the proceedings are transferred to the Crown Court. That is the effect of the Bill as it stands, without the amendments.

I should point out another effect of Amendment No. 11. That is that the prosecutor would be under no duty to make primary prosecution disclosure under Clause 3 until the accused pleads not guilty at a summary trial or the proceedings are transferred. That is because Clause 4 provides for the prosecutor to give the accused the schedule at the same time that he makes primary prosecution disclosure, and under Amendment No. 11 the prosecutor is under no duty to give the schedule until a not guilty plea is entered at a summary trial or the proceedings are transferred.

Amendments Nos. 13 and 21 to Clauses 5 and 6 have the effect of confining Clause 5 to cases where proceedings are transferred to the Crown Court and applying Clause 6 in all other circumstances. Again, this preserves the effect of the provisions which the amendments replace and is presumably intended to be consequential on Amendment No. 1 to Clause 1. But, as I have explained, that amendment is completely ineffective.

I turn now to Amendments Nos. 41 and 43 to Clause 14. At present, Clause 14 disapplies the common law rules on disclosure (except those about whether disclosure is in the public interest) which were effective immediately before Part I of the Bill was implemented and which relate to things done after the relevant time. The amendments would re-define the relevant time for the purposes of Clause 14. Instead of tying it in to the time when the accused pleads not guilty at a summary trial, which is the trigger for prosecution disclosure elsewhere in the Bill, the relevant time would be when the accused is charged.

Let me explain what this means. Part I as a whole applies in relation to any offence into which a criminal investigation begins on or after the day on which Part I is brought into force. The duties of disclosure imposed on the prosecution under Part I apply to such offences from the point at which the accused pleads not guilty at a summary trial or the proceedings are transferred to the Crown Court. Under Clause 14, as drafted, the common law duties of disclosure, which are superseded by the Bill, end at the same point as the new statutory duties begin. There is accordingly a clean break between the two. Under these amendments, in relation to summary trials, the common law duties of disclosure end when a person is charged with an offence. There is then a gap between charge and a not guilty plea at the trial when neither the existing common law rules nor the statutory rules will apply. This may not have any effect in practice, but I do not see why there should be any gap at all.

Also, the effect of the amendments is to disapply the common law rules in relation to cases where either the accused is charged or the proceedings are transferred. But in all cases where disclosure is made, whether the proceedings are transferred, the accused will already have been charged. The effect of Amendment No. 41 would therefore be to render Amendment No. 43 completely unnecessary. It could only give rise to problems of interpretation for the courts, which would have to ask themselves why Parliament had included a specific reference to proceedings being transferred when it had no actual effect in practice.

Finally, I turn to Amendment No. 95, which amends Clause 40. At present, Clause 40 in effect requires magistrates' courts to invite a defendant charged with an offence triable either way to enter an indication of plea before the court considers which mode of trial (summary or indictable) is suitable. The purpose of Amendment No. 95 is to restrict the operation of the new provision to cases where the prosecutor has made primary prosecution disclosure under Clause 3 of the Bill. Accordingly, the accused would not have to give an indication until he knew what the prosecutor thought might undermine the prosecution case. But the effect of Clause 1 of the Bill as it stands is that the prosecutor is under no duty to make primary prosecution disclosure in summary trials until after the accused has pleaded not guilty. And, as I have explained, that is also the effect of Amendment No. 11 to Clause 4.

When we debated similar amendments in Committee. I explained why the duty of prosecution disclosure should not arise in summary trials until after the defendant had pleaded not guilty. If the prosecutor had to make disclosure before the accused had indicated his plea, he would be put to a great deal of work to no useful purpose in the very many cases where the accused intended to plead guilty all along. This additional burden in the generality of cases would far outweigh the benefit to be gained in borderline cases where the knowledge of what the prosecutor thought might undermine the prosecution case was sufficient to persuade an accused to plead guilty when he might otherwise have pleaded not guilty.

For all those reasons, I invite the House not to accept the amendments.

Lord McIntosh of Haringey

My Lords, the Minister has opened the proceedings on Report from the Government Front Bench by, I am afraid, reinforcing all my worst fears. She has made no attempt whatever to address the thrust of the amendments or the issue with which the amendments are concerned. She has made no attempt to address the fears of the Law Society which, after all, represents those people who are responsible for advising accused persons about what their plea should be. She has made no attempt to say that there are other views and that the Law Society may be wrong in issuing advice to such people to plead not guilty in order to obtain the information.

The Minister has relied instead on drafting points alone. I did my best to keep up with them, but when she started by saying that Amendment No. 1 proposed that Part I should apply to any offence, she ignored the fact that subsections (1) and (2) of Clause 1, as drafted, apply to any offence. They are deliberately designed to apply to any offence and to spell out the different kinds of offence in order that subsequent clauses in Part I should apply in different circumstances. We knew that in Amendment No. 1 we were dealing with indictable and summary offences and that the two together add up to all offences. We proposed the amendment in order that our subsequent amendments to Part I should also cover all circumstances in the Bill. I am afraid that the same kind of argument applies throughout the Minister's textual analysis of the amendments.

It would be enormously helpful if our Report stage procedures allowed matters to be debated in a more informal way, but they do not. The procedure is that when, as on this occasion, the Minister rises immediately without, so far as I could see, looking round to ascertain whether any other noble Lords wished to take part in the discussion, that is the close of the debate. She speaks and I have the right to reply and no one else can have anything to say on the matter. I regret that she found it necessary immediately to rise to her feet, as if this were a Committee stage, without looking round to see whether there were any other contributions to be made.

Baroness Blatch

My Lords, I hope that anyone with powers of observation behind me will have noticed that I looked all around the Chamber not once, but twice. That was because I fully expected someone to come in on the amendment. Nothing that I have said precludes the possibility or the opportunity for anyone to speak. However, I saw no one willing to rise to speak on the amendments other than the noble Lord opposite.

Lord McIntosh of Haringey

My Lords, there is a visual record of what happens here, as well as a written record. I suggest that it would be inadvisable for those of us who disagree genuinely about what happened to do so without the results of a photo-finish.

Baroness Blatch

My Lords, with the leave of the House, I rise a second time to say that the noble Lord accuses me of something rather serious. I believe that the test of whether I stood in the way of any Member of the House speaking would be to invite anyone to stand up who wished to speak and was prevented from speaking because I rose at the Dispatch Box to answer the amendment.

Lord McIntosh of Haringey

My Lords, the Minister has twice given us her assurance that she looked around, that she did the right thing, and I accept what she said. It was clearly her intention and it must have been my misinterpretation that anything else happened.

The fundamental thrust of the argument has not been addressed in the Minister's reply. There is no opportunity for anyone else to address it now because of the rules of debate at the Report stage. I fear that the Government are determined not to listen to the views of those who are most closely concerned with the practicalities of procedures for primary disclosure and revelation by the police. I am sure that the Minister will not mind me saying that, when she so helpfully agreed to discuss the matter with me between the Committee stage and now, she told me that the Crown Prosecution Service felt that there was no serious danger of an increase in the number of not guilty pleas. I believe that I am right about that and it is the basis on which the Government feel able to resist not just these amendments but any comparable ones.

I believe that the Minister is indicating assent. In other words, she is relying on the view of the Crown Prosecution Service. I, a non-lawyer like her, am relying on the views of the Law Society.

Lord Campbell of Alloway

My Lords, will the noble Lord give way? Under the rules, perhaps I may ask the noble Lord to accept that I came here to listen to the debate. I took the same view and that is why I did not intervene. That is absolutely straight.

Lord McIntosh of Haringey

My Lords, I accept that and welcome the noble Lord's concern to ensure that our debates are as short as is practicable.

However, the fundamental point remains. Those who are concerned with such matters on a day-to-day basis not only fear that there will be an increase in unnecessary not guilty pleas, but will actually tell their members that they should advise not guilty pleas under those circumstances. I do not think I can do justice to the arguments of those who are best informed in these matters unless I take the opinion of the House.

4 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 102; Not-Contents, 139.

Division No. 1
CONTENTS
Addington, L.	Jenkins of Putney, L.
Airedale, L.	Judd, L.
Archer of Sandwell, L.	Lester of Herne Hill, L.
Ashley of Stoke, L.	Listowel, E.
Avebury, L.	Lockwood, B.
Barnett L.	Longford, E.
Berkeley, L.	McGregor of Durris, L.
Birk, B.	McIntosh of Haringey, L.
Blackstone, B.	McNair, L.
Blease, L.	Mallalieu, B.
Borrie, L.	Mar and Kellie, E.
Broadbridge, L.	Mason of Barnsley, L.
Bruce of Donington, L.	Merlyn-Rees, L.
Callaghan of Cardiff, L.	Methuen, L.
Carmichael of Kelvingrove, L.	Milner of Leeds, L.
Carter, L.	Mishcon, L.
Castle of Blackburn, B.	Molloy, L.
Chapple, L.	Monkswell, L.
Cledwyn of Penrhos, L.	Morris of Castle Morris, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Ogmore, L.
Dean of Thornton-le-Fylde, B.	Perry of Walton, L.
Desai, L.	Peston, L.
Donaldson of Kingsbridge, L.	Plant of Highfield, L.
Donoughue, L.	Prys-Davies, L.
Dormand of Easington, L.	Rathcavan, L.
Dubs, L.	Redesdale, L.
Elis-Thomas, L.	Richard, L.
Ewing of Kirkford, L.	Robson of Kiddington, B.
Ezra, L.	Rodgers of Quarry Bank, L.
Falkland, V.	Russell, E.
Fitt, L.	Sainsbury, L.
Gallacher, L.	Seear, B.
Geraint, L.	Sewel, L.
Gladwin of Clee, L.	Shepherd, L.
Glasgow, E.	Simon, V.
Graham of Edmonton, L. [Teller.]	Stallard, L.
Hamwee, B.	Strabolgi, L.
Hams of Greenwich, L.	Thomas of Walliswood, B.
Haskel, L.	Thomson of Monifieth, L.
Hayman, B.	Thurso, V.
Hayter, L.	Tope, L.
Hilton of Eggardon, B.	Tordoff, L
Hollis of Heigham, B.	Turner of Camden, B.
Hooson, L.	Wedderburn of Charlton, L.
Howell, L.	White, B.
Howie of Troon, L.	Williams of Crosby, B.
Hughes, L.	Williams of Elvel, L.
Hylton, L.	Williams of Mostyn, L.
Jay of Paddington, B.	Winston, L.
Jeger, B.

NOT CONTENTS
Aberdare, L.	Jenkin of Roding, L.
Addison, V.	Keyes, L.
Ailesbury, M.	Killearn, L.
Ailsa, M.	Kimball, L.
Alexander of Tunis, E.	Kitchener, E.
Allenby of Megiddo, V.	Knollys, V.
Ampthill, L.	Lane of Horsell, L.
Archer of Weston-Super-Mare, L.	Lauderdale, E.
Ashbourne, L.	Lindsay, E.
Astor of Hever, L.	Lindsey and Abingdon, E.
Blaker, L.	Liverpool, E.
Blatch, B.	Long, V.
Boyd-Carpenter, L.	Lucas, L
Brabazon of Tara, L.	Lucas of Chilworth, L.
Burnham, L.	Lyell, L.
Butterworth, L.	McConnell, L.
Cadman, L.	Mackay of Ardbrecknish, L
Campbell of Alloway, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Campbell of Croy, L.
Carnarvon, E.	Mackay of Drumadoon, L.
Carnock, L.	Macleod of Borve, B.
Charteris of Amisfield, L.	Marlesford, L.
Chelmsford, V.	Merrivale, L.
Chesham, L. [Teller.]	Mersey, V.
Clanwilliam, E.	Miller of Hendon, B.
Clark of Kempston, L.	Milverton, L.
Cochrane of Cults, L.	Monckton of Brenchley, V.
Cockfield, L.	Monk Bretton, L.
Constantine of Stanmore, L.	Montgomery of Alamein, V.
Courtown, E.	Mottistone, L.
Cranborne, V. [Lord Privy Seal.]	Mowbray and Stourton, L.
Cullen of Ashbourne, L.	Moyne, L.
Cumberlege, B.	Munster, E.
Dacre of Glanton, L.	Murton of Lindisfarne, L.
De Freyne, L.	Noel-Buxton, L.
Dean of Harptree, L.	Northesk, E.
Denham, L.	Norton, L.
Denton of Wakefield, B.	O'Cathain, B.
Dixon-Smith, L.	Orkney, E.
Eden of Winton, L.	Oxfuird, V.
Ellenborough, L.	Park of Monmouth, B.
Elles, B.	Pike, B
Eme, E.	Prentice, L.
Exmouth, V.	Quinton, L.
Fairhaven, L.	Rankeillour, L.
Faithfull, B.	Rawlinson of Ewell, L.
Ferrers, E.	Reay, L.
Finsberg, L.	Renton, L.
Flather, B.	Renwick, L.
Fraser of Carrnyllie, L.	Runcie, L.
Fraser of Kilmorack, L.	St. Davids, V.
Gainford, L.	Saltoun of Abernethy, Ly.
Geddes, L.	Sandys, L.
Goold, L.	Shaw of Northstead, L.
Goschen, V.	Simon of Glaisdale, L.
Haig, E.	Skelmersdale, L.
Hailsham of Saint Marylebone, L.	Stockton, E.
Halsbury, E.	Strathclyde, L. [Teller.]
Harding of Petherton, L.	Swinfen, L
Harrowby, E.	Temple of Stowe, E.
Hayhoe, L.	Trington, L.
Henley, L.	Teviot, L.
Hogg, B.	Thomas of Gwydir, L.
Holderness, L.	Torrington, V.
HolmPatrick, L.	Trumpington, B.
Hooper, B.	Ullswater, V.
Hothfield, L.	Wakeham, L.
Howe, E.	Wilberforce, L.
Ilchester, E.	Willoughby de Broke, L.
Ironside, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.8 p.m.

The Lord Advocate (Lord Mackay of Drumadoon) moved Amendment No. 2: Page 1, line 9, after ("offence") insert ("in respect of which a court proceeds to summary trial and"). The noble and learned Lord said: My Lords, in speaking to this amendment I shall, with the leave of the House, speak also to Amendments Nos. 3, 16, 17, 42, 44, 45, 83, 88 and 89.

These are technical amendments which are needed to ensure that the disclosure scheme operates in relation to all Crown Court cases. As currently drafted, it will apply where proceedings for the trial of an offence are transferred to the Crown Court. That will account for the vast majority of Crown Court cases. However, there are two additional sets of circumstances which need to be brought within the ambit of the scheme.

The first of these is where what is know as a voluntary bill of indictment is preferred, following an application by the prosecutor to a judge. This is a device for getting a case to the Crown Court where the normal method is impracticable or undesirable for any reason. It is seldom granted and only where the interests of justice require it.

The second is where a charge of a specified summary offence is included in an indictment with other offences connected to it which are to be tried in the Crown Court. This is an exception to the rule that offences which are summary only must be tried in a magistrates' court. Amendment No. 3 to Clause 1 brings these within the disclosure scheme for the Crown Court by extending the definition in Clause 1(2) of the circumstances in which the scheme is to apply. The other amendment to Clause 1, Amendment No. 2, is consequential. Amendments Nos. 42, 44 and 45 to Clause 14 are also consequential on Amendment No. 3 to Clause 1. They insert references to preferring a bill of indictment, including a count in an indictment, into the definition of the relevant time in Clause 14(3) for the purposes of disapplying the common law rules on disclosure in accordance with Clause 14(1). Where a voluntary bill is preferred the accused needs to know the case against him before he can be required to make defence disclosure. Amendment No. 17 to Clause 5 achieves this. It requires the service on the accused of a copy of the bill of indictment, together with a copy of the set of documents containing the evidence on which the charge is based. This will put what currently happens on a statutory basis. The other amendment to Clause 5, Amendment No. 16, is consequential.

Finally, Amendment No. 83 to Clause 21 and Amendments Nos. 88 and 89 to Clause 32 are related to the amendments to Part I. They insert references to preferring a voluntary bill of indictment into these clauses. Clause 21 applies Part III of the Bill to cases which are transferred to the Crown Court for trial. Clause 32 defines a pre-trial hearing for the purposes of Part IV with references to cases transferred to the Crown Court for trial. I beg to move.

Lord Campbell of Alloway

My Lords, one marvels at the complexity and structure of this Bill, as proposed to be amended. However, I pay tribute to the simplicity with which this matter has been explained by my noble and learned friend the Lord Advocate. I only ask that his speech may be represented in the standard text books so that those who have to deal with this may have an opportunity to understand it.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 3: Page 1. leave out lines 18 to 20 and insert— ("(a) a person is charged with an indictable offence and proceedings for the trial of the person on the charge concerned are transferred to the Crown Court, (b) a count charging a person with a summary offence is included in an indictment under the authority of section 40 of the Criminal Justice Act 1988 (common assault etc.), or (c) a bill of indictment charging a person with an indictable offence is preferred under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge)."). On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 4: Page 2, line 1, at end insert ("or not."). The noble Lord said: My Lords, in speaking to Amendment No. 4 I should like to speak also to Amendment No. 78. Before doing so, it occurs to me that perhaps my remarks on the first amendment were to a degree inadequate. When the Minister said that she looked around I acknowledged that she must have done so. I realised that I ought also to have apologised to her for saying the opposite. I now complete my correction of the events as they transpired.

I do not apologise, however, for bringing forward again Amendment No. 4. I have done so only because it seems to me that the arguments in Committee against these amendments were inadequate. The noble Lord, Lord Campbell of Alloway, did not convince me when he said that because the Bill used the word "ascertain" it implied that the two alternatives of being guilty or not guilty were given equal weight. Similarly, the Minister did not convince me by saying that the use of the word "whether" implied that the two alternatives were given equal weight. Of course, the alternatives are implied in the phrase "ascertain whether the accused is guilty". Nobody says that that is not so.

I appeal to noble Lords who are concerned for the proper drafting of legislation. I refer in particular to the noble Lord, Lord Airedale, and also to the noble Lord, Lord Renton, who I do not believe was able to be present when this was previously debated. I ask noble Lords to confirm that if in court itself the question to the accused is whether he pleads guilty or not guilty, and the charge to the jury is whether they find the accused guilty or not guilty, surely they are not an unnecessary extra two words. They are there because they are meant to give equal weight to the possibility of the accused being guilty or not guilty. The police and prosecution are supposed to give as much weight to the possibility of the accused being not guilty as they do to the possibility of the accused being guilty.

I know that this is only a drafting point and it does not affect the way in which the Bill will be implemented by men and women of good will, but I believe that if these phrases are correctly used in the courts they ought also to be used on the face of the Bill. The Bill is incomplete without them. I beg to move.

4.15 p.m.

Lord Williams of Mostyn

My Lords, most miscarriages of justice in this country derive from a culture which is a sub-derivation of our adversarial system. The intelligent and reflective police officer, of whom in my experience there are many, is and should be aware of the fact that the public interest is truly, fully and faithfully served by the acquittal of the innocent just as much as by the conviction of the guilty. This is not entirely a cosmetic or semantic amendment. It is intended to reflect the principles for which I hope we all contend; namely, that an investigation into crime is not simply to establish whether a person who is charged is guilty, but whether a person who may be charged, or has been charged, may equally be not guilty or in truth innocent.

Lord Renton

My Lords, the noble Lord, Lord McIntosh of Haringey, was so kind as to refer to me in my concern about drafting. I shall look at this Bill with great interest at the end of Report stage to see how Clause 1 reads and what its effect may be. It is very complicated. If it were possible to find more simple drafting at Report stage I am sure that my noble friend Baroness Blatch would wish to apply her mind to it, as indeed would the rest of us.

To be frank, I believe that Amendment No. 4. is overzealous. If an investigation is to take place to discover whether or not somebody is guilty, and that investigation causes the investigator to consider that the person is not guilty, that is the end of the matter. There is no need to overdo it and put into the Bill these extra words.

Lord Campbell of Alloway

My Lords, it is common ground that this is not an exhortation to the police. The Bill is not incomplete without it, and as to that we have the opinion of my noble friend Lord Renton. I accept that the amendment is wholly well-intentioned to reflect principles that we all uphold but, with the greatest respect to the noble Lord, Lord Williams of Mostyn, I question whether this part of the Bill is the appropriate vehicle to carry that thought. The noble Lord, Lord McIntosh of Haringey, was kind enough to put my point for me. It would quite wrong to seek to repeat it.

Lord Rodgers of Quarry Bank

My Lords, I believe that the noble Lord, Lord McIntosh of Haringey, has somewhat diminished the force of the amendment by referring to it as a drafting point. I think it is rather more than a drafting point, as the noble Lord, Lord Williams of Mostyn, said. The object of it—and why I am disposed to support the amendment—is that it is meant to reflect the spirit and principles that we expect to find in the court and to be essentially even-handed throughout the Bill. A great deal of the Bill is concerned with the issue of even-handedness and balance between prosecution and defence.

If indeed it is a convention to draft a Bill of this kind in this way, it is a reasonable argument for that convention to be followed today. But if there is no convention of a kind embodied in the present wording of paragraph (b), I would strongly support the amendment as more clearly expressing what I am sure that the House wants.

Viscount Bledisloe

My Lords, with respect, this amendment seems very curious. It seeks to insert into subsection (4)(b) the words "or not". The paragraph would then read: whether a person charged with an offence is guilty of it or not". The amendment does not seek to insert those words into subsection (4)(a), making it read: whether a person should be charged with an offence or not". It seems very curious to have the words "or not" so that once that the person has been charged the police have to think whether he is guilty or not but, when he has not been charged, the police do not have to bother to think about that but only about whether to charge him. If we are to have even-handedness, we should have even-handedness between paragraphs (a) and (b).

Lord Mackay of Drumadoon

My Lords, as my noble friend Lady Blatch indicated in Committee, the Government's view is that these amendments are unnecessary. That is a view clearly supported in the House today by my noble friends Lord Renton and Lord Campbell of Alloway.

The amendments are unnecessary because the process of considering whether a person is guilty of an offence must necessarily involve considering whether he is not guilty. In my submission, it would be a very different matter if the Bill as framed defined a criminal investigation in terms of ascertaining or determining that a person was guilty of an offence rather than whether he was guilty.

Perhaps the most forceful point that can be made in response to the amendments arises from the issue raised by the noble Lord, Lord Rodgers of Quarry Bank. Inquiry has been made since the matter was before your Lordships in Committee. The precedent adopted in the amendment is one that has been used in the past; for example, in Section 7(1) of the Road Traffic Act 1988 and Section 31(1) of the Transport and Works Act 1992. Both those sections are framed in terms of "an investigation into whether a person has committed an offence". The words "or not" are not used in either section. If the Bill were to be amended in the way suggested by the noble Lord, it might cast doubt on the interpretation of similar provisions, such as those I have quoted, were those to be the subject of construction before a court of law.

For all those reasons, I invite the noble Lord to withdraw his amendment.

Lord McIntosh of Haringey

My Lords, I did not claim that the amendment was a simplifying amendment. It adds words. It adds only two words but it does add words to the Bill. I said that it was a drafting point and the noble Lord, Lord Rodgers disagreed. I remind him that he said in Committee that it was a higher drafting point. Therefore, perhaps we are not so far apart as might appear.

I am grateful to the noble and learned Lord the Lord Advocate for seeking to do what the Minister undertook to do in Committee when challenged; namely, to look for precedent for the use of the word "guilty" without the words "or not" added. It must have taken a great deal of research to find a rather pathetic couple of road traffic (or whatever) Bills which have nothing to do with the operation of the system of criminal justice. If I ask the Minister now to tell me before Third Reading whether there are any examples to the contrary—in other words examples of legislation having been drafted with the words "or not"—we can perhaps see what he comes up with. I rather suspect that there will he many more examples. It is not just in legislation but in the courts where the equal weight implied by the words "guilty or not guilty" are so well known, so well established, and so valuable a part of our criminal procedure. It is important that everybody concerned should be in no doubt about the equal weight given to the two possibilities.

The noble Viscount, Lord Bledisloe queried whether the words "or not" should apply in other places as well. That may be so. I must remind the House that we are not talking so much about the wording of Clause I itself but the effect of Clause 1 as the trigger for primary disclosure by the prosecution to the defence. That is the fundamental issue which determines the range of material revealed by the police to the prosecutor and disclosed by the prosecutor to the accused. That is the true importance of being sure that the police and the prosecutor work in an even-handed way to make sure that what they produce is not distorted by any misunderstanding of the balance of emphasis which ought to be required in legislation.

I do not believe that I am wrong. I think that if the noble and learned Lord the Lord Advocate pursues his researches he will find sufficient and perhaps more relevant examples of the use of the wording that I propose. Clearly, this is not a matter on which I shall seek the opinion of the House on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [General interpretation]:

Lord McIntosh of Haringey moved Amendment No. 5: Page 2, line 15, at end insert— ("( ) References to inspection are to inspecting and examining, whether by the accused, his legal representative or an expert instructed by them.").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 6, which occurs at the same place in the Bill. This may only he a probing amendment. I am not sure. It depends on what Ministers say in response. But as we read the Bill it does not require the investigator to allow the prosecutor to have access to the material which has been revealed to him as well as being told about it; and it does require the prosecutor to allow the defence to examine material as well as being told about it. Therefore, we seek to clarify the references to the words "inspect" and "reveal".

I remind the House that the word "reveal" was introduced in government amendments only at Committee stage. So we are in a state of some flux about the wording to be used in the Bill. We suggest that further points of provision in Clause 2, which, after all, is a clause of general interpretation, would be helpful in making sure that inspection includes examination as well as inspection and that revelation includes inspection as well as providing a copy. We believe that those precautions are necessary to make sure that revelation and disclosure are as complete and even-handed as possible. If there is any doubt, we should wish that doubt to be removed. I very much hope—indeed, I expect—that the Minister will be able to allay our fears. I gladly give way to the noble Lord.

Lord Renton

My Lords, before the noble Lord sits down, I wonder whether he would be so good as to help us by letting us know where the word "revealing" comes later in the Bill. I have been looking for it and although my eyesight is fairly acute, I have not yet come across it.

4.30 p.m.

Lord McIntosh of Haringey

My Lords, if the noble Lord, Lord Renton, looks back at the amendment moved in Committee by the Government he will find that a whole series of amendments contained the word "disclosed" which was previously used for the transmission of information from the investigator to the prosecution. That is replaced on a number of occasions—I do not have them all at my fingertips—by the word "revealed".

It was explained by the Minister that no change in meaning was intended by the switch from "disclosed" to "revealed". The intention was to make a distinction in wording between those two stages of the process. I do not remember on how many occasions the change occurred. There may have been half-a-dozen or so cases of the word "revealed" which is why it is appropriate for a general interpretation clause to include a more precise exposition of what the word means.

Lord Renton

My Lords, perhaps I may now express my humble view on the two amendments. I do not believe that Amendment No. 5 is necessary. The word "inspection" in the context in which it is used in the Bill does not need elaboration in the way proposed by the amendment. An inspection is an inspection, whether it is done on behalf of the accused, the prosecution, a legal representative or anybody else. There must be precedent for that in this branch of the law.

In relation to the word "revealed", I confess that I am handicapped. As the noble Lord said, I was not able to be present at the Committee stage and, in glancing—admittedly rather quickly—through the pages of the Bill, I have not come across the word "revealed". However, I assume that the different contexts in which that expression is used will be enough to disclose what the word means. Again, I should not have thought that Amendment No. 6 was necessary.

Lord Campbell of Alloway

My Lords, I take a rather different view to that of my noble friend Lord Renton. I wholly support the spirit in which the amendments are tabled, if only to seek the assurance that neither is necessary. I hope that the spirit of the amendments, which I support 100 per cent., will he the subject of an assurance from my noble and learned friend the Minister. The noble Lord, Lord McIntosh, has done the House a service by tabling the amendments.

Lord Williams of Mostyn

My Lords, I support the amendments essentially on the basis specified by the noble Lord, Lord Campbell of Alloway. This is a matter of great significance in the conduct of criminal trials and in particular in their preparation by those who represent defendants.

As the noble Lord, Lord Campbell of Alloway, said, we do not necessarily ask that the Government accept the amendments. We will be satisfied with an absolute assurance that "inspection" means more than the bare word implies. Perhaps I can give one or two examples with which we are all familiar in practice. Increasingly, prosecutors rely on DNA evidence. A defendant must have the prerogative, as of legal right, to have examinations carried out rather than simply the bare "inspection" implied in the present word. Handwriting samples may need to be tested; blood samples may need to be tested. As we all know too well and too sadly from recent cases, documents may be tested by ESDA. All those matters ought to be available as of right on disclosure. If the Minister is able to say that that will always obtain, our fears will be put to rest. They are not idle fears in the context of what we know about the reliance sometimes placed on detailed examinations as well as cursory inspections of documents, samples and exhibits.

Viscount Runciman of Doxford

My Lords, perhaps I can follow that by expressing my agreement with the importance of this issue and the hope that the Minister will be able to give an assurance. These points were discussed in considerable detail during the deliberations of the Royal Commission and an assurance will he most welcome. I hope that the Minister can give it.

Lord Mackay of Drumadoon

My Lords, perhaps it would be helpful if I began by addressing the request from all sides of the House for an assurance. I can give such an assurance unequivocally. "Inspection" will include examinations of the nature described by the noble Lord, Lord Williams of Mostyn. As he rightly says, increasingly in criminal trials forensic examination of tissue material, documentary material, blood samples and the like is of crucial importance in determining whether or not a man ought to be properly convicted of the charge he faces. Therefore, in seeking to persuade your Lordships that the amendments are unnecessary, I give a clear assurance that "inspection" will include examination by a legal representative, any forensic scientist or other expert instructed to assist an accused man in preparing his defence.

Lord Williams of Mostyn

My Lords, I am grateful for the Minister's response. Am I to understand that that means examination as of right?

Lord Mackay of Drumadoon

My Lords, yes, subject to the usual provisions for preserving such material so that it can, in the passage of time, be produced in court if production is necessary. There is no question of there being any discretion on the part of the prosecution to grant in some cases but to refuse in others. On that basis, Amendment No. 5 is unnecessary. "Inspection" encompasses examination, and the right of the accused to carry out an inspection encompasses the right to instruct his legal representative or any other expert to deal with the matter on his behalf.

In relation to Amendment No. 6, perhaps I should begin by assisting my noble friend Lord Renton. One finds reference to the term "revealed" in Clause 16(1)(c) and (d) of the Bill. In so far as the amendment is tabled as an amendment to Part I, a technical point may arise but it is not the appropriate part of the Bill in which to make such an addition. However, the main opposition to the amendment is that it is unnecessary.

Under the provisions of Clauses 16 and 17 as presently drafted, the Bill allows for both the prosecutor and the accused to inspect and, in appropriate cases, obtain a copy of any material that can he copied. In particular, in regard to the prosecutor, the code—a draft of which has been available to your Lordships and which is discussed in detail in the provisions of Clause 17—makes specific reference to what is provided in relation to copies being made available. The relevant subsections are (4), (5) and (6).

On the basis of that explanation and, more importantly, the assurances given to your Lordships' House, I hope that the noble Lord, Lord McIntosh, will withdraw the amendment.

Lord Shepherd

My Lords, before the noble and learned Lord sits down, in reply to my noble friend on the Front Bench and whether or not it is a question of right, I thought the Minister said "in some cases". I may be wrong. I thought the Minister made a qualification in terms of whether it was a right. It may simply have been an error, but it seemed to me that the Minister qualified his response. If it is a right, it must be a right without qualification.

Lord Mackay of Drumadoon

My Lords, any confusion is due to my accent rather than the language that I used. No qualification is included in the assurance. My example reinforces the point that there is no question that the right would be available in some instances and not in others.

Lord McIntosh of Haringey

My Lords, I understood the noble and learned Lord the Lord Advocate to say that there was no question of a distinction being applied, and I took that as an absolute assurance.

I am not quite so clear about the noble and learned Lord's response to Amendment No. 16 because he used the words "appropriate cases" in regard to copies, but I think he meant that "appropriate cases" means when a copy is possible and not that the prosecution should have a discretion as to whether copies should be provided. It is only a matter of physical possibility. I gladly take his silence as being confirmation that that is what he intended.

I could not ask for more because I have received the assurances that I was looking for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Clause 3 [Primary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 7: Page 2, line 20, leave out second ("the") and insert ("a reasonable").

The noble Lord said: My Lords, in speaking to the amendment I speak also to Amendments Nos. 9, 10 and 26.

We raised this issue at Committee stage and took note of the opinion of the Committee on a different amendment to that which is now proposed. However, the issue of whether there should he an objective test for material that is to be disclosed is of such profound importance that it is necessary to return to it.

We object to the provision in Clause 3(1)(a) in regard to prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused. That is not good enough. We are not contesting the fact that prosecutors will have to take a view. We know that in practice that is the case. However, if the definition of what is to be disclosed is that which in the prosecutor's opinion should be disclosed, what would be the position if there is a subsequent query in the Court of Appeal or by the Criminal Cases Review Authority, for example, as to whether the conviction is safe. The answer given by the prosecutor could be: "I may have been wrong but in my opinion this is what I should do." If there is no objective test and the prosecutor's opinion is the only criterion, that could have very serious consequences. There is the possibility of miscarriages of justice. That would be a return to the position before the establishment of a Royal Commission. The same would apply if there were no power to re-examine forensic evidence in order to find a different interpretation from that arrived at originally.

The prosecutor's opinion should not be the ultimate deciding factor in disclosing material to the accused as part of the disclosure process. It cannot have been the Government's intention that that should be the case. I can understand that the Government wish to recognise that the prosecutor has to make a judgment at the beginning of the process as to what should he included. We understand that position, but that is implicit in the Bill whether or not the amendments are accepted.

The Government cannot have intended that that should be the end of the matter and that there should be no objective test in the event of a query and a possible miscarriage of justice.

I move the amendment in a spirit of appeal to the Government. I do not think that they intend the possible grievous harm that might occur if those words are left in the Bill. I beg to move.

Lord Campbell of Alloway

My Lords, I wholly support the amendment. It is a very important principle. I wholly support the objective test. If there is no objective test it is all but impossible to apply and enforce the provisions as they are intended to be applied. A subjective test may be totally honest but totally erroneous. That is not a satisfactory yardstick for an important matter of this order. I should also like to ask the Government if they would be good enough to consider the matter with an open mind.

4.45 p.m.

Lord Williams of Mostyn

My Lords, I support the amendment on the basis that there is a tradition in this country which causes the libertarian right and the libertarian left to join hands. The tradition and principle for which I contend is that state power, whatever its name, should be subject to sensible restriction.

I concede, not on behalf of the first signatory to the amendment, that the amendment might have been more gracefully put on the basis of "in the prosecutor's reasonable opinion".

Lord Renton

Hear, hear.

Lord Williams of Mostyn

I am fortified by the nod and the audible support from the noble Lord, Lord Renton.

There can be no rational basis for objecting to the second amendment because it is intended to clarify the position that such decisions should be based on reason and not a subjective view.

Viscount Runciman of Doxford

My Lords, I support the comments made by the noble Lord, Lord Campbell of Alloway. The amendment would relieve the prosecutor of an invidious position. I cannot think that the prosecuting authority would object to the amendment.

Viscount Bledisloe

My Lords, I support the amendments, particularly Amendments Nos. 9 and 10. The noble Lord, Lord Williams of Mostyn, is correct in saying that the amendments should not contain the words "reasonable prosecutor", but that they should include the words, "in the reasonable opinion of the prosecutor".

Clause 3(3) refers to material that consists of recorded information. The prosecutor may decline to produce a copy because he says that it is not desirable. The accused then asks the judge to tell him to produce a copy. The judge says he cannot see any reason for not doing so, but as the prosecutor tells him that it is not desirable, that is his opinion and he cannot overrule that position. That is fantastical. I urge the Government to bring forward an amendment containing the words "in the reasonable opinion of the prosecutor".

Baroness Blatch

My Lords, the first amendment seeks to change the test for primary prosecution disclosure from a subjective test that is reliant on the opinion of the prosecutor to an objective test. Material would be disclosed if, in the opinion of the reasonable prosecutor, it might undermine the prosecution case rather than if the individual prosecutor thought that it might have that effect.

I have to confess to doubts over whether the amendment would make any difference in practice. These provisions of the Bill plainly place the prosecutor under certain duties of disclosure. In discharging those duties the prosecutor will, as always, be bound by professional ethics and specifically, if he is a member of the Crown Prosecution Service, by the code for Crown prosecutors which requires him to act so as to secure a fair trial.

In considering what material is required to be disclosed to the accused, the prosecutor will bring his best judgment to bear. The amendment would require him to consider what the opinion of a reasonable prosecutor might be and not just, as the Bill does now, what is his opinion. Surely it is human nature for us to assume that our opinions are the opinions of a reasonable person. Surely a prosecutor will form his opinion on the assumption that it is a reasonable one, especially if he is acting in a professional capacity and discharging duties prescribed by statute. So I do not think that in practice the amendment would achieve any improvements in the way the disclosure regime operates. It seems strange that a prosecutor performing a public duty under an ethical code as well as under a duty to act fairly and reasonably must somehow or other think of another reasonable prosecutor's judgment.

Lord McIntosh of Haringey

No.

Baroness Blatch

That is the effect of the amendment. He must actively think how a reasonable prosecutor would make the judgment. The assumption is that he is not a reasonable prosecutor or a prosecutor thinking reasonably and acting ethically under the codes to which he is bound.

Viscount Bledisloe

My Lords, does the noble Baroness not appreciate that, as the matter stands, if someone challenges the decision of the prosecutor, that person is bound by the prosecutor merely standing up and saying, "That is my opinion. However unreasonable it may be, that's my opinion and that's the end of the matter"? If the word "reasonable" goes in, the judge can say, "Your opinion is not reasonable. Therefore you have to do it".

Lord Campbell of Alloway

My Lords, does my noble friend not appreciate that a perfectly reasonable prosecutor, because he is human, can act unreasonably?

Baroness Blatch

My Lords, there is a real distinction between what the amendment says and what has been suggested in the course of discussing the amendment. We would all want the prosecutor to act reasonably and we would all want to see that something could be done about it if he was not acting reasonably. However, the amendments ask him in effect to think how a reasonable prosecutor might think. What we want is a prosecutor thinking reasonably and fairly in coming to a judgment about what should be disclosed. There is a distinction in the suggestion made by the noble Lord, Lord Williams of Mostyn, and supported by the noble Viscount, Lord Bledisloe. I should like to take that away and reflect upon it between now and the Third Reading.

Lord McIntosh of Haringey

My Lords, I am grateful for the Minister's final remarks. I should like to think that there is a genuine misunderstanding about the purpose of these amendments. I recognise that the point made by the noble Viscount, Lord Bledisloe, is marginally different from the one I am making in the amendment itself. I still think that to take out the words "in the prosecutor's opinion" does not mean that the prosecutor has to stand behind himself and pretend he is someone else. What we are seeking to do is to put on the face of the statute what the Minister has rightly described as the ethical rules under which prosecutors have to operate.

The trouble with the ethical rules under which prosecutors have to operate is that they may change and Parliament will not know. I have great faith in the director of the Crown Prosecution Service and I have no reason to suppose that the service is deliberately acting unethically. But I do say that the way my amendment is drafted still provides that the prosecutor has to make up his own mind about the matter of disclosure. That is a matter of fact. There is no other way of doing it. He cannot appeal to someone else. What I am saying is that if, under my amendment, his opinion is not the final arbiter or, under the type of amendment suggested by the noble Viscount, Lord Bledisloe, he is required to be reasonable in coming to that conclusion, there is something which can be objectively tested afterwards.

I am very much encouraged by the support of the noble Lord, Lord Campbell, and the noble Viscount, Lord Runciman, and by the support also, with a slight difference, of the noble Viscount, Lord Bledisloe, and the most effective support of my noble friend Lord Williams of Mostyn. On the basis of the Minister's undertaking to think again, and on the basis that we may indeed be looking for the same solution, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 8: Page 2, line 22, after ("accused") insert ("or which in the interests of justice should be disclosed").

The noble Lord said: My Lords, Amendment No. 8 covers a different point but it is one of very considerable importance. We have thought carefully about the wording since we covered the same issue in Committee. What we sought to do before was to alter significantly the wording of Clause 3(1)(a), which is perhaps the most important single subsection in the whole of Part I. It is the subsection which triggers the definition of what material has to be disclosed by the prosecutor under the primary disclosure provisions.

We have talked about the prosecutor's opinion. In Committee we expressed our unhappiness about the inadequacy of the phrase, might undermine the case for the prosecution". It is very difficult, we confess, to come up with a positive phrase that would adequately express our concern for the equality of arms which, I think it is agreed on all sides of the House, is the basis of the disclosure provisions. Therefore, with some regret, we have fallen back on a form of words which leaves it to the judges. In other words, which in the interests of justice should be disclosed", enables, in the case of any query, the judges to say that they have the responsibility in their interpretation of the law for the interests of justice and under those circumstances they think that the prosecutor did or did not behave properly in exercising his powers and responsibilities under the Criminal Procedure and Investigations Act 1996.

I would much prefer a form of words which explicitly expressed our desire for equality of arms. However, I recognise the difficulties and I recognise the defects of the wording we sought to use last time. I hope, therefore, that our fall-back position, which is to rely, I suppose, on the ethical principles on which our legal system is based, will be acceptable to the Government and to the House. I beg to move.

Lord Campbell of Alloway

My Lords, I am afraid that I have to oppose the amendment. The noble Lord, Lord McIntosh of Haringey, has certainly been straightforward with your Lordships, as he always is. It is a fall-back amendment. There are difficulties in its drafting. It is far to vague, it is far too woolly, it is not necessary, and it would be the source of vast confusion. I have to oppose it hull down.

Baroness Blotch

My Lords, as drafted, Clause 3 provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which, in the prosecutor's opinion, might undermine the case for the prosecution. As my noble friend Lord Campbell of Alloway has said, this amendment considerably widens the test for prosecution disclosure to include material which should be disclosed "in the interests of justice". In doing so, it imposes an obligation on the prosecution, as opposed to the current discretion, to go beyond the current requirement of primary prosecution disclosure. It thus dismantles the reciprocal nature of the disclosure scheme whereby further prosecution disclosure is subject to disclosure by the accused.

It is worth recording that throughout the trial the prosecutor remains under a continuing duty to disclose. If the amendment were accepted, the improvements in the disclosure regime, which the Government believe are needed and which the Bill seeks to make, would not be secured. The whole purpose of, and rationale for, the Bill would be undermined by the amendment.

Lord McIntosh of Haringey

My Lords, I confess that I find that an extraordinary answer. All the amendment says is that there shall be a further test in the interests of justice. It does not in any way seek to undermine any of the subsequent procedures or the duties and responsibilities of the prosecutor. It simply says that there shall be an objective test, as there is in so much legislation, including this legislation. This is what happens at the present time. I am sorry that we do not have the support of the noble Lord, Lord Campbell of Alloway. I do not really know what "hull down" means, but it sounds very threatening. In view of the quite unequivocal rejection of this amendment by the Minister and in view of its importance and that of the test for primary disclosure, it is necessary to seek the opinion of the House.

The Earl of Clanwilliam

My Lords, before the noble Lord sits down, may I tell him that "hull down" means hovering over the horizon, waiting for the enemy to come out.

Lord McIntosh of Haringey

My Lords, I have never heard of the noble Lord, Lord Campbell of Alloway, hovering over the horizon. He is usually at much closer quarters than that.

5.2 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 117.

Division No. 2
CONTENTS
Addington, L.	Harris of Greenwich, L.
Airedale, L.	Haskel, L.
Ashley of Stoke, L.	Hooson, L.
Beaumont of Whitley, L.	Howell, L.
Berkeley, L.	Howie of Troon, L.
Birk, B.	Hughes, L.
Blackstone, B.	Hutchinson of Lullington, L
Borrie, L.	Jay of Paddington, B.
Broadbridge, L.	Jeger, B.
Bruce of Donington, L.	Jenkins of Putney, L.
Callaghan of Cardiff, L.	Judd, L.
Carter, L.	Kennet, L.
Castle of Blackburn, B.	Lester of Herne Hill, L.
Clinton-Davis, L.	Lockwood, B.
Cocks of Hartcliffe, L.	McIntosh of Haringey, L.
David, B.	McNair, L.
Dean of Thornton-le-Fylde, B.	Mallalieu, B.
Desai, L.	Mar and Kellie, E.
Donaldson of Kingsbridge, L.	Mason of Barnsley, L.
Donoughue, L.	Merlyn-Rees, L.
Dubs. L.	Milner of Leeds, L.
Falkland, V.	Molloy, L.
Gallacher, L.	Monkswell, L.
Gladwin of Clee, L. [Teller.]	Morris of Castle Moms, L
Glasgow, E.	Nicol, B.
Graham of Edmonton, L. [Teller.]	Ogmore, L.
Hamwee, B.	Prys-Davies, L.

Redesdale, L.	Thurso, V.
Richard, L.	Tope, L.
Robson of Kiddington, B.	Tordoff, L.
Rodgers of Quarry Bank, L.	Turner of Camden, B.
Russell, E.	Wedderburn of Charlton, L.
Seear, B.	White, B.
Shepherd, L.	Williams of Elvel, L.
Smith of Gilmorehill, B.	Williams of Mostyn, L.
Thomas of Walliswood, B.	Winston, L.
NOT-CONTENTS
Aberdare, L.	Kenyon, L.
Acton, L.	Knollys, V.
Addison, V.	Lane of Horsell, L.
Ailsa, M.	Lauderdale, E.
Alexander of Tunis, E.	Leigh, L
Archer of Weston-Super-Mare, L.	Lindsay, E
Ashbourne, L.	Lindsey and Abingdon, E.
Astor of Hever, L.	Liverpool, E.
Belhaven and Stenton, L.	Long, V.
Blaker, L.	Lucas, L.
Blatch, B.	Lyell, L.
Bledisloe, V.	Mackay of Ardbrecknish, L.
Bowness, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Boyd-Carpenter, L.
Brabazon of Tara, L.	Mackay of Drumadoon, L.
Burnham, L.	Macleod of Borve, B.
Butterworth, L.	Marlesford, L.
Cadman, L.	Marsh, L.
Campbell of Alloway, L.	Merrivale, L.
Campbell of Croy, L.	Mersey, V.
Camock, L.	Miller of Hendon, B.
Chelmsford, V.	Milverton, L.
Chesham, L. [Teller.]	Monckton of Brenchley, V.
Clanwilliam, E.	Monk Bretton, L.
Clark of Kempston, L.	Montgomery of Alamein, V.
Cochrane of Cults, L.	Mottistone, L
Constantine of Stanmore, L.	Mountevans, L.
Courtown, E	Mowbray and Stourton, L.
Craigmyle, L.	Moyne, L.
Cranborne, V. [Lord Privy Seal.]	Munster, E.
Cross, V.	Murton of Lindisfarne, L.
Cumberlege, B.	Northesk, E.
Dacre of Glanton, L.	Norton, L.
Dean of Harptree, L.	Oxfuird, V.
Denham, L.	Park of Monmouth, B.
Denton of Wakefield, B.	Pender, L.
Dixon-Smith, L.	Pike, B.
Eden of Winton, L.	Prentice, L.
Ellenborough, L.	Quinton, L.
Elles, B.	Rankeillour, L.
Erne, E.	Rawlinson of Ewell, L.
Flather, B.	Reay, L.
Fraser of Carmyllie, L.	Rennell, L.
Geddes, L.	Renton, L.
Goschen, V.	Shaw of Northstead, L.
Hailsham of Saint Marylebone, L.	Skelmersdale, L.
Harding of Petherton, L.	Soulsby of Swaffham Prior, L.
Harrowby, E.	Strathclyde, L. [Teller.]
Hayhoe, L.	Sudeley, L.
Henley, L.	Swansea, L.
Hogg, B.	Swinfen, L.
Holderness, L.	Teynham, L.
HolmPatrick, L.	Thomas of Gwydir, L.
Hooper, B.	Torrington, V.
Hothfield, L.	Trefgarne, L.
Howe, E.	Trumpington, B.
Hylton-Foster, B.	Wakeharn, L.
Inglewood, L.	Willoughby de Broke, L.
Jenkin of Roding, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.10 p.m.

[Amendments Nos. 9 and 10 not moved.]

Clause 4 [Primary disclosure: further provisions]:

[Amendment No. 11 not moved.]

Lord McIntosh of Haringey moved Amendment No. 12: Page 3, line 20, at end insert— ("( ) and the prosecutor has satisfied himself that the document includes all material except sensitive material.").

The noble Lord said: My Lords, this is a simple amendment but it refers to the important issue of who is to decide what is sensitive material. I shall not detain the House by reading out the full definition of "sensitive material". We put that in an amendment at Committee stage and it is available for inspection by your Lordships in the code of practice which the Government have kindly placed in the Library and made available more generally to the House. Anybody who has looked at it will realise that the definition of "sensitive material" is very wide. It starts with matters of national security and goes on to include matters of intelligence and foreign intelligence. It quite properly includes the protection of the identity of witnesses who might otherwise be at risk, and a whole range of provisions for material which, because it is sensitive, is not only not disclosed, but its existence is not disclosed in a schedule.

The question is simply: who shall be responsible for deciding what is sensitive and what is not sensitive? The Bill as drafted allows the investigator, the police, to decide what is sensitive and what is not sensitive. I yield to nobody in my admiration of the police and of the rules which govern police investigations, both under the Police and Criminal Evidence Act and, I hope, in the code of practice under Part II which will eventually be agreed and approved by Parliament. At the same time, however, I suggest that the police themselves would not wish to be the sole arbiters of what is sensitive and what is not. In the end, it is the prosecutor (who has the responsibility of deciding what is disclosed to the defence) who should also have the responsibility of deciding what is sensitive and what is not, and he should do so having had the opportunity to inspect the material which is claimed to be sensitive as well as the material which is not claimed to be sensitive.

We are seeking to provide in Clause 4 that the prosecutor should satisfy himself that the document includes all material except sensitive material". I do not think that it is an earth-shattering amendment. It is not intended in any way to diminish the very great responsibilities which the Bill will place on the police. It is intended to ensure that the prosecutor, who is ultimately responsible to the courts for the disclosure process, shall be able to, and shall, satisfy himself that sensitive material has been withheld and that non-sensitive material has not been withheld. There is no proposal to change the definition of what is "sensitive". It is simply a matter of who is responsible for deciding what is and what is not sensitive. I beg to move.

Lord Campbell of Alloway

My Lords, I oppose the amendment. We are concerned with sensitive material which can affect national security. Under the Bill, the investigator decides what is sensitive. There are very few Silks at the Bar who are cleared for security. At this moment I am not; at one time I was, but for other reasons than my profession. It is most important that such material should not go beyond the investigator. For those reasons, national security being of paramount importance, I oppose the amendment.

5.15 p.m.

Lord Williams of Mostyn

My Lords, I am sorry to say that for the very reasons which the noble Lord, Lord Campbell of Alloway, set out, I entirely support the amendment. Of course, relatively few leading counsel would be cleared for security purposes, but they are precisely those who would be nominated to prosecute in such a class of case. I believe that to be well known. The noble Lord said that it is important that this should not go outside the province of the investigator; I profoundly disagree. It is in precisely that class of case that one needs a different view—not a partisan view, but a view from someone who has the ethical duties which the Minister has rightly referred to on numerous occasions. It is essential that one has a filter. There is no danger to national security if the matter is considered by counsel and, in extreme cases, considered if necessary by the Attorney-General. It is an important principle, for which we shall continue to contend.

Lord Mackay of Drumadoon

My Lords, as presently framed, the amendment would place an obligation on the prosecutor to satisfy himself that the schedule of non-sensitive material provided under Clause 17(3) includes all the non-sensitive material. Accordingly, in addition to the issues of national security which my noble friend Lord Campbell of Alloway raised, the effect of the amendment would he to duplicate work that would have been carried out by a police officer acting in accordance with the code of practice. That duplication of work may have the effect of lessening the importance which the police officer attaches to the obligation that is placed upon him. Moreover, it would also place a heavy burden on the prosecutor who, in order to comply with the requirement, would need to check through all the material that the police had obtained in the course of the investigation.

The duplication arises in that Clause 16 requires the Secretary of State to prepare a code of practice, the provisions of which are designed to secure that the information obtained in a criminal investigation is recorded; that that record and any other material so obtained is retained; and that it is disclosed to the prosecutor who is given a written statement that activities required by the code have been fully complied with and carried out.

Clause 17 enables the code to provide that a police officer must give a prosecutor a document indicating the nature of any material in his possession which is of a prescribed description and which he does not believe is sensitive, and stating that he does not believe that it is sensitive.

Those are important safeguards. It is in view of them and of the duplication of work that would result if the amendment were agreed to, together with the unnecessary burdens that would be placed on the prosecutor, and having regard to the view of national security which was taken by my noble friend Lord Campbell, that I hope that the noble Lord, Lord McIntosh, will not press his amendment.

Lord McIntosh of Haringey

My Lords, both the noble and learned Lord the Lord Advocate and the noble Lord, Lord Campbell of Alloway, referred to sensitive material as relating particularly to national security. I would be astonished if as much as 1 per cent. of sensitive material related to national security. Much more of it will be about, for example, material given in confidence—

Lord Campbell of Alloway

No.

Lord McIntosh of Haringey

My Lords, yes, that is one of the definitions of "sensitive material". As I said earlier, the protection of witnesses is also involved. Sensitive material goes very much wider than issues of national security and even if issues of national security were to be of paramount importance, which I do not believe that they are in this context, the answer given by my noble friend Lord Williams is entirely convincing.

We are not talking about any member of the legal profession; we are talking about senior members of the Crown Prosecution Service. If there is any question of sensitive material, surely those senior members of the Crown Prosecution Service can be trusted to see the material and decide whether it should be classified as sensitive

I am utterly unconvinced by the argument put forward by the noble and learned Lord the Lord Advocate that somehow to have a further view of the prosecutor would be—and I noted the words that he used—"lessening the importance" of the police investigation because they would know that someone else would look at the case. I think more highly of the police. I believe that they will do their job properly because it must be done properly and because the code of practice provides for that. They will do it no less properly because someone else will look at their work afterwards. In the end, the court will look at all of the work that the police have done. That does not mean that the police have any less a sense of importance about adhering to proper standards.

I was not at all convinced by the argument, but it is not a matter on which I wish to seek the opinion of the House on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Compulsory disclosure by accused]:

[Amendment No. 13 not moved.]

Lord McIntosh of Haringey moved Amendment No. 14: Page 3, line 27, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

The noble Lord said: My Lords, in moving Amendment No. 14, I shall speak to Amendment No. 18 and to Amendments Nos. 30 to 35 in Clause 10. They are all concerned with equality of arms; in other words, securing as far as possible, within the limits of what is reasonable to expect of the Crown Prosecution Service, that it should provide sufficient information to enable the defence to make a proper response in terms of defence disclosure.

We believe—the key wording is to be found in Amendment No. 18 rather than in Amendment No. 14—that the prosecution should make a proper statement of its case as part of primary disclosure; in other words, as part of the trigger for secondary disclosure. The words used in Amendment No. 18 are: (a) the principal facts of the case for the prosecution; (b) the witnesses who will speak to those facts; (c) any exhibits relevant to those facts; (d) any proposition of law on which the prosecution proposes to rely; (e) the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).".

The amendments properly reflect the concerns which were discussed at some length in the report of the Royal Commission. They ensure that we have the equality of arms that is necessary and that they will result in better and fuller defence disclosures which will in turn affect beneficially the subsequent conduct of the preparation of the cases for the defence and the prosecution and, therefore, in the end result in a better trial.

As always, the amendments are constructive. They are not designed to deter the prosecution from doing its job properly or to make it more difficult for the prosecution to do its job properly. They are designed to enable the defence to give a better account of itself at the defence disclosure stage. I hope that on that basis they will be acceptable to the House.

I recognise that in many cases the conditions that have been laid down for a primary prosecution disclosure will cover the points which I have read out and which are provided for in Amendment No. 18. But surely it is desirable not only that they should be covered obliquely and incidentally in the wording of the Bill but that they should be explicit in the Bill. That is what a case statement is. That is the trigger, for example, for a preparatory hearing and that is what is possible and necessary for the defence to see in order to make a proper disclosure in turn. That is what ought to be on the face of the Bill. I beg to move.

Lord Ackner

My Lords, I support the spirit of the amendment. I have the advantage of having a copy of a letter which was written to the noble Lord, Lord McIntosh, by the noble Baroness, Lady Blatch. She has said that the provision is unnecessary, that it would involve a great deal of work and would be very expensive. I appreciate that it would involve more work and would carry with it expense. However, it is the result of the Government wanting a far greater disclosure than was anticipated by the Royal Commission.

I do not criticise the Government for wanting a greater disclosure. The more cards on the table, so long as that does not conflict with the burden of proof, the better. The litigation can be dealt with not only more quickly but more effectively. Perhaps I may remind the House that all that was being sought by the Royal Commission can he found at page 99, paragraph 68, in these terms: In most cases the 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". That is not the approach of the Crown in this situation. The Crown is seeking, by reason of the defence statement, what amounts, if this were a civil case, to a full defence answering the statement of claim. It places the obligation upon the defendant to state, in regard to the material provided to him, the matters on which he takes issue with the prosecution and in the case of each such matter the reasons why he has taken issue with the prosecution.

I do not believe that it is reasonable to expect him to do that if all that is provided to him is a bundle of witness statements and an indication of the nature of the offence. There are all kinds of inferences which might or might not be open to be drawn from those statements. The Crown is wanting the accused to focus on what is, if I may use the inelegant phrase, the guts of the potential prosecution so that he can say in terms, "I don't agree with this inference, I don't agree with this suggestion and these are my reasons".

The Crown cannot have it both ways. Either it goes to the additional expense of providing a statement, perhaps not as full as that required in the amendment but certainly a great deal more than a mere bundle of witness statements, or it reduces the obligation upon the defendant to answer the various matters which the defence statement involves. The Crown must make up its mind which it wants, and for the moment I support the amendment.

5.30 p.m.

Lord Campbell of Alloway

My Lords, I take a different view from that expressed by the noble and learned Lord. I would not have thought that proposed paragraphs (a) to (d) in Amendment No. 18 were necessary. Indeed, I would have thought that those matters had been broadly covered in the Bill's provisions. If that is not so, I should like to be told that I am wrong.

As regards paragraphs (e), that is mere argument. I could never support the amendment in that form. There is absolutely no necessity for the prosecutor to deploy his argument as to the consequences in relation to counts" in order to put the accused on notice of the guts of the allegation. That is really going too far. In any event, such matters of consequence are matters of presentation. It is quite possible that, until the ruling of the court is received, it is impossible to crystallise exactly what are the consequences. However, what one can do for the Crown is to say, "These are the facts and these are the propositions of law on which we are going to rely". One cannot go beyond that. One cannot start trying to deal with consequences. That would he wholly oppressive. With respect to the noble and learned Lord, I suggest that that would be wholly unsuitable for this kind of procedure.

Lord Ackner

My Lords, in view of the criticism just made by my noble friend, I wonder whether he has overlooked Clauses 24 and 25. I say that because the wording used in the amendment seems to me to have been lifted out of the legislation itself.

Viscount Runciman of Doxford

My Lords, I should like to welcome and endorse the remarks made by the noble and learned Lord, Lord Ackner, while entirely appreciating the force of the rejoinder by the noble Lord, Lord Campbell of Alloway, with whom I entirely agree as regards the unpredictability of consequences. We are all agreed that we want earlier and better preparation of criminal trials—and I believe that we all agree in the House that the thrust of the Bill will achieve that aim—but the question is whether precisely the right balance has been struck or, indeed, as nearly as is practicable. I believe that the noble and learned Lord, Lord Ackner, is right to say that there is a danger in the Crown trying to have it both ways.

In the great majority of cases I believe that the procedure should be fairly straightforward in practice. I am not persuaded that the ticking of boxes is quite so naïve a procedure as the noble and learned Lord suggests. I say that because, as we all know, the overwhelming majority of cases—even those which go through the Crown Court; and I say nothing of the magistrates' court—are relatively straightforward.

I am sure that most of us in this House are very concerned about the complex as well as the serious cases; and, indeed, particularly the serious and complex cases. It is in that respect that I believe there is a real risk that justice will not be done if—and I echo again the words of the noble and learned Lord, Lord Acknerthe—Crown tries to have it both ways. I hope that Ministers will be willing to take that point as seriously as I am quite sure it deserves to be taken.

Lord Williams of Mostyn

My Lords, I should like to express my support for the amendment. Indeed, the key to its support is to be found in the speeches just made by the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Runciman. It cannot be overstressed that most cases—and I shall no doubt be disbarred for saying this—in the Crown Court tried under criminal procedures are relatively simple and straightforward. Ticking the boxes, which is a rather crude description of what the Royal Commission recommended, is utterly adequate and sufficient for the overwhelming bulk of those cases.

If one looks at what the amendment requests, one finds no more than the defendant would find in the competent opening by competent prosecution counsel of the case against the defendant, which the latter would then hear for the first time as he sits in court having been arraigned on the first day of the trial. I echo the phrase of the noble Viscount: if the Crown wants earlier and better disclosure, why cannot that be done in the suggested form before the opening that I have just described?

Any opening will deal with these matters: why are the facts contended; what are the propositions of law; who are the witnesses generally to be relied upon; and, what are the consequences which follow? That is no more than would be disclosed in the opening to a trial. If the view of the present Government is that further disclosure is required for the efficient and just management of a criminal justice system, it seems to me that there is nothing to be said in principle against the thrust of the amendment.

Lord Mackay of Drumadoon

My Lords, the House will recall that the issues were debated in Committee and that consideration was given to the proposals which would require the service of a prosecution case statement upon the accused in the terms set out in the first amendment. It is clear from the reference that the noble and learned Lord made to previous correspondence involving my noble friend the Minister that the Government have thought about the matter most carefully. But, having done so, the Government remain of the view that to require a prosecution case statement in every case would be undesirable and would place an additional burden on the prosecution without materially assisting the accused in every case to which, of course, the amendment refers.

The noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Runciman, referred to a balance having to be struck. In my submission, an appropriate balance has been struck. In all cases which are transferred to the Crown Court for trial, the prosecutor must serve specified information about his case so that the accused knows what is the case against him. In general, that information will be a notice of the prosecution case which specifies the charges against the accused in relation to the proceedings being transferred. It will also include a set of documents containing the evidence on which the charges are based. In two special kinds of case—namely, serious or complex fraud and certain violent or sexual offences involving children—the information will be a copy of the documents containing the evidence to which a notice of transfer given under the relevant legislation refers.

The information is a full account of the evidential material on which the prosecution would propose to rely. I beg to suggest that, in almost every case, it will leave no doubt whatever about what the prosecution case is against the accused. Where that is so, requiring the production of an additional document which contains information about the prosecution case will add nothing to the primary evidence. I do not believe that the accused needs such an additional document in the circumstances proposed in order to comply with the requirements on him in Clause 5 of the Bill. Indeed, upon the basis of information already given, he will be well able to indicate the matters upon which he takes issue with the prosecution and the reason why he does so.

Where a case is so complex that it requires a secondary document in order to steer and navigate through the prosecution evidence, it seems to me, on the basis of my understanding of the procedure in England, that it would be likely to fall within the class of case where the judge may order a preparatory hearing under Clause 22, either at his own instance or by way of an application from the prosecutor; or, indeed, from the accused man himself. In such a case a detailed prosecution statement will then be provided.

The only effect in practice would be to add to prosecution costs and inject a further element of delay in bringing cases to trial. I understand that the Crown Prosecution Service has estimated that it would add some £4.5 million to its costs to produce such a statement in each and every case. I submit that that expenditure would not be justified.

The content of the prosecution case statement to be required in all cases would indeed be the same as in a preparatory hearing. However, as I have already suggested, a preparatory hearing is designed only for potentially long or complex cases and not the relatively straightforward case to which the noble Lord, Lord Williams of Mostyn, has referred. In those long or complex cases the benefits of having the statement outweigh the burdens which may be imposed by the preparation stage and certainly outweigh the burden of any expense that may be incurred. However, that does not apply in the generality of cases. For those reasons I invite your Lordships to take the view that what is proposed would not carry sufficient benefits to outweigh the disadvantages that I have mentioned.

I shall now discuss Amendments Nos. 30 to 35. The House will again recall that we debated these amendments in Committee. As my noble friend Lady Blatch explained on that occasion, the Government consider that there are good reasons for Clause 10 to remain as it is. The Royal Commission on Criminal Justice recommended that the accused should be required to disclose information about his case. It foresaw the possibility of the accused attempting to evade the requirement in some way and for thus reason it recommended sanctions in the form of the drawing of inferences in certain circumstances. These were putting forward a defence at trial without giving any indication in advance; or relying on a different defence at trial from the one disclosed earlier; or disclosing in advance a number of inconsistent defences. The Government accepted this recommendation and Clause 10(1)(a), (c) and (d) give effect to it. The effect of Amendments Nos. 30 to 35 would be to depart from the Royal Commission's recommendation in applying paragraphs (a) and (d) to both parties to the proceedings, and removing paragraph (c) altogether.

The effect of removing paragraph (c) is that it will be open to the accused to set out any number of inconsistent defences in a defence statement so as to trigger the maximum possible disclosure of additional material by the prosecutor, whether or not he intends to rely on any of those defences, and to do so without any sanction. It will completely undermine the scheme in the Bill.

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

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

5.45 p.m.

Lord McIntosh of Haringey

My Lords, I am heartened by the support which has been expressed for these amendments, notably by the noble and learned Lord, Lord Ackner. the noble Viscount, Lord Runciman of Doxford, and by my noble friend Lord Williams of Mostyn. They encourage me to think that we are not quite as stupid as some people think we are.

Despite what the noble and learned Lord the Lord Advocate said, I was not claiming that these amendments would assist the accused in every case. He said that they would act without materially assisting the accused in every case. Of course they will not assist in every case, but if we are to look at this matter objectively we have to contrast what is required of the prosecution and what is required of the defence. What is required of the prosecution under the Bill is the indictment and the witness statements and, really, nothing else. In other words, the defence has to interpret the indictment and the witness statements and take a view as to what the prosecution case statement would be if it had been disclosed.

What is required of the defence under Clause 5 is much more detailed. Clause 5(4) states that a defence statement is a written statement, setting out in general terms the nature of the accused's defence, indicating the matters on which he takes issue with the prosecution". We must remember that as the Bill is drafted "the prosecution" only means the indictment; it does not mean a full prosecution case statement. Clause 5 further states, setting out, in the case of each such matter, the reason why he takes issue with the prosecution". My next comment may not be acceptable to the noble Viscount, Lord Runciman, but the prime argument for these amendments is that they will enable the defence to make a better statement because the defence will know what case statement is being answered, and will know—

Viscount Runciman of Doxford

My Lords, I am grateful to the noble Lord for giving way. I think I was careful in my remarks not wholeheartedly to endorse the amendments as grouped precisely because I very much recognise the force of some of the arguments which the noble and learned Lord the Lord Advocate put. I spoke at that stage because I wanted—if I remember how I worded it—to endorse and support the remarks of the noble and learned Lord, Lord Ackner, about my concern at the possibility that the Crown might try to have it both ways. I hope to hear from the noble and learned Lord the Lord Advocate at least that that concern is taken seriously by Ministers. I do not wish to dissociate myself from the remarks of the noble Lord, Lord McIntosh; I perhaps want to have it both ways by supporting the noble and learned Lord, Lord Ackner, and conceding—as I would if I were to speak at greater length, which is unnecessary—a great deal, and indeed agreeing with what the noble and learned Lord the Lord Advocate said.

Lord McIntosh of Haringey

My Lords, those comments are interesting and helpful and I am grateful to the noble Viscount for them. The point he is making is valid; namely, that my amendments—I made the point myself—go further than he would perhaps wish to go in making it possible for the defence to give a fuller statement in the defence disclosure. However, even so, and even though what I think we are doing here is evening out and improving the possibilities, there are two ways of evening things out: one is drastically to limit the amount of disclosure on both sides, and the other is to increase the amount of disclosure on both sides.

It is not possible to have the very general statement of requirements of defence disclosure and such a limited statement of prosecution disclosure. That is not in the interests of justice. It may result, paradoxically, in more guilty people going free. There is certainly a possibility that it would result in the prosecution changing its case subsequently on the basis of the defence disclosure, or even building its case on the basis of the defence disclosure when it has not made up its mind in advance what the case is.

The noble and learned Lord the Lord Advocate gave figures from the Crown Prosecution Service of a potential cost of £4.5 million. That sounds like a classic case of an unknowable statistic. It must be based on assumptions, which ought to be explicit and could be queried, about the number of cases in which this would occur, the number of cases in which the information provided would be substantially in excess of that which is provided now, and the number of cases in which a case statement—which has to be prepared sometime—has not been provided at the time of the defence disclosure.

Conversely, there is no reference to the savings that might result from this provision. For example, what is the likely bill for legal aid for helping the defence to make a disclosure? It is clear that defence disclosure would be more difficult if the Bill remains as drafted and the amendments are not accepted. That in turn must have a cost. Again, what is the cost of delay as a result of the defence having to invent, reconstruct or construct for the first time a prosecution case statement in order to create a defence case statement?

No, my Lords, the two are not properly matched. A defence case statement is required in response to a prosecution disclosure which does not include a case statement. That cannot be right. The wording of the amendments is not such that I wish to test the opinion of the House on them, but this is a matter of great importance and is one of the half dozen most important matters to which we shall have to return at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 15: Page 3, line 32, leave out first ("and") and insert ("or").

The noble Baroness said: My Lords, Amendment No. 15 is a purely technical amendment. Clause 5(2)(b) refers to a notice of transfer given under Section 4 of the Criminal Justice Act 1987 in cases of serious and complex fraud. The Criminal Justice and Public Order Act 1994 amended the Criminal Justice Act 1987 so that Section 4 deals with cases of serious or complex fraud. The amendment simply ensures that the wording of Clause 5(2)(b) is consistent with that change. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 16 and 17: Page 3, line 34, leave out ("or"). Page 3, line 39, at end insert (", or (d) section 1(2)(c) applies and the prosecutor has served on the accused a copy of the indictment and a copy of the set of documents containing the evidence which is the basis of the charge.").

The noble Baroness said: My Lords, the amendments were spoken to with Amendment No. 2. I beg to move the amendments en bloc.

On Question, amendments agreed to.

[Amendment No. 18 not moved.]

Baroness Mallalieu moved Amendment No. 19: Page 3, line 40, at end insert ("unless in the opinion of the court it is not in the interests of justice for him to do so.").

The noble Baroness said: My Lords, the amendment was tabled at Committee stage. All those who spoke in relation to it, with the exception of the noble Baroness the Minister, spoke in support of it. As I recall, they spoke from various sides of the Chamber and included four noble Lords who are either legal practitioners or former practitioners and one practising member of the judiciary.

The noble Baroness undertook to read the debate and consider all that had been said. I understand that she has written to me. In the past 20 minutes I have been shown a letter addressed "Dear Ann" which is in the hands of the noble Lord, Lord Harris of Greenwich, but I fear that the original has not reached me. However, I have had an opportunity to read the letter and I understand that the Minister's position remains unchanged. I said in Committee that if the Government did not think fit to bring forward an appropriate amendment I would feel compelled to do so today. I now do so.

The purpose of the amendment is simple. I believe that it is necessary in the interests of economy, efficiency and justice. I believe that it effects a real improvement to the Bill.

Under Clause 5(3) the accused must give a defence statement to the prosecutor. The amendment adds the words: unless in the opinion of the court it is not in the interests of justice for him to do so". "Hard rules make bad law" may be a cliché, but I suggest to the House that this is a classic illustration. In most cases it will be both necessary and possible for the defence to give a statement so that the issues can be properly clarified before trial. However, in a small number of cases it will not. Perhaps I may give the House three different illustrations.

The first is the very straightforward case of the kind to which my noble friend Lord Williams of Mostyn referred in relation to another amendment. An officer sees a man break a shop window and he believes that it was a deliberate act. There are no other witnesses. He arrests the man at once, and the man claims that it was an accident. The only statements necessary or indeed available for trial will be those of the officer and possibly one from the owner of the shop about the cost of repair. There will he no undisclosed prosecution material. The issue is whether the glass was broken by accident or whether it was a deliberate act. That will be abundantly clear to all those involved in the case. If a defence statement has to be served, no purpose will he served by it. The issues are clear. It will not prompt any further disclosure. However, it will involve further expense, almost certainly to the Legal Aid Fund. In such a case a requirement would appear to he pointless.

I give a different example. The defendant is suffering from serious mental illness. The issue is whether he is fit to plead. That was an example given in Committee by the noble Viscount, Lord Colville of Culross. The Crown will of course be notified of the position because the matter will have to be determined as a preliminary issue. However, if the defendant is incapable of giving lucid instructions upon which a defence statement can be based, there can surely be no purpose in such a case in requiring one from him. In such a case, it must, as a matter of good sense, be open to a judge to dispense with such a statement at the appropriate stage and not to wait until the trial is under way before he is able to decide whether there should be comment about failure to give one.

The third example is quite different. It is common to find an unrepresented defendant who is illiterate or semi-illiterate, particularly in the small simple cases which will make up the vast majority of those to which this legislation will relate. Many such people come before our courts, as anyone who sits in a magistrates' court in London, for example, will well know. In some of those cases, to require the defendant to produce a statement in writing will be to ask the impossible or near impossible of him, with all the risks of misunderstanding and mistake which are, frankly, the oxygen of miscarriages of justice. Who is to explain to that man what he must do and how he must do it, and who is to assist him? In an appropriate case of that nature, surely it ought to be open to the judge at an early stage to deal with the matter by dispensing with the statement.

I understand the anxiety of the noble Baroness, to which she referred at Committee stage, and I understand mentions again in her letter that no additional stage in the disclosure process should be added by such an amendment. However, I suggest to her and those who advise her that the reality is that in such a case two stages would be removed at a stroke: first, the requirement for the defence statement; and, secondly, the secondary disclosure by the prosecution.

I believe that very few cases would be involved. Difficulties of that sort arise, but they will not be commonplace. Where they arise the matter can surely be listed before a judge by way of a simple application or indeed a mention. I believe that in many of those cases there will be agreement between both prosecution and defence that no purpose would be served by such a step.

The Bill introduces quite complex procedural rules. I believe that it is also necessary to provide a means for cutting short procedure at the appropriate stage in a case where that would be in the interests of justice. The amendment gives a judge power to do so in an appropriate case at the appropriate point. I hope that the amendment will commend itself to the House as being based on plain common sense which, if it is likely to do anything, will save money rather than incur further expenditure and will be in the best interests of economy, efficiency and justice, at the end of the day producing a decent piece of working legislation. I beg to move.

6 p.m.

Lord Harris of Greenwich

My Lords, as a signatory to the amendment perhaps I may say a few words.

I should like to indicate my gratitude to the noble Baroness, Lady Blatch, for writing to me and to others on the point. It has been helpful. However, if I may say so, it is profoundly unhelpful to receive a letter at ten past four this afternoon, which is the position so far as I am concerned. Only by chance did I receive the noble Baroness's letter. But if one is to have letters from Ministers, it is obviously highly desirable that one should have a reasonable amount of time to consider the issues, particularly as they are fairly complex.

During the last debate, the noble Baroness, Lady Blatch, may recall that I asked three questions, one of which has been touched upon by the noble Baroness, Lady Mallalieu. First, what would he the position if the defendant were not legally represented? Who was going to draw the attention of the accused to his obligations under the statute on the production of a defence statement? Who had the obligation of informing the unrepresented defendant of his precise responsibilities?

In the letter which I received from the noble Baroness, she states: We quite agree that the accused must not be put in the position of not producing a defence statement because no-one told him he had to produce one". I am glad that the noble Baroness has made the position clear. Earlier in the same paragraph she said: We are currently considering various options for doing this, such as setting out the requirements imposed by the Bill in the covering letter which the prosecution will send when it makes primary prosecution disclosure, or by way of a notice from the court when proceedings are transferred for trial. If the accused was unrepresented, the information would be served on him personally". So far, so good, my Lords. However, as the noble Baroness, Lady Mallalieu, pointed out—indeed I pointed it out on the last occasion that we discussed the matter—a substantial proportion of people in prison are either semi-literate or illiterate. If they are held in a grossly overcrowded prison, as many are, who in that prison will have the responsibility of explaining his responsibilities to the unrepresented defendant? Who will help him draft his defence statement? Will some specific officer of a clear rank in a prison, such as assistant governor, have that responsibility? We deserve specific answers to the questions; otherwise a man's defence could be gravely prejudiced. As the noble Baroness pointed out, I am sure that there is no desire on the part of the Government to take action which would lead to that unhappy result.

I hope that the noble Baroness will accept that in prisons at present, grossly overcrowded as they are, with cuts being made in numbers of staff—uniformed, probation officers and education officers: exactly the people who might help unrepresented people to prepare some form of defence statement—it is necessary to have some clear guarantee from the Government on the action that they will take to ensure that the unrepresented defendant has access to advice from people who are literate and capable of giving him that advice.

Lord Campbell of Alloway

My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Mallalieu. However, there is another aspect, upon which she touched. I had a client not long ago who threw her child off a bridge into the Thames. She was charged with murder. Her defence was insanity, which the jury at the Old Bailey accepted. How could she make a defence statement?

Viscount Colville of Culross

My Lords, perhaps I may put the matter into the framework of the practicalities. The noble Baroness who will reply might like to give a little guidance to the House as to how the provision will work.

It appears to me that the situation as proposed in the amendment before us in the name of the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Harris of Greenwich, will happen anyway. At present when cases are committed in the Crown Court—they will be transferred when the arrangements are made—a date is given for a plea in directions hearings six weeks later. The objective of the exercise is that the judiciary should have hands-on handling of these cases—as has been suggested by the noble and learned Lord, Lord Woolf, on the civil side—to try to get the cases to trial quickly. I am sure that the noble Viscount, Lord Runciman, agrees that that is desirable in the criminal field too.

If the plea in directions hearing is reached, and Clause 5(3) has not been complied with, what will happen in practice? The judge will have the case called on. It will be abundantly plain that there is not a defence statement. After a little discussion between parties, it will also become clear that the prosecution knows perfectly well what the defence is in the sort of case to which the noble Baroness referred. Will the judge then be debarred from giving the listing officer an opportunity to provide a date merely because there is no defence statement?

Let us suppose that the judge does not require a defence statement to be given. Will that matter be judicially reviewable? It seems to me that that will be a sledgehammer to crack a nut. In practice the judge carrying out the plea in directions hearing will say, effectively, that the matter is ready for trial.

I appreciate what the noble Baroness says. It may be easier to put the provision in the Bill. I am a little concerned that there may be some risk if one does not have a little relaxation in the terminology on the face of the statute. But in practice I believe that it will happen anyway.

Lord Williams of Mostyn

My Lords, it is an important amendment and, not for the first time if I may say so, the House should be extremely grateful for the infonned view of the noble Baroness, Lady Mallalieu.

If we step back from the particular problem and inquire how the criminal justice system works, it can only work efficiently and effectively in this country if one gives informed discretion to the judge either of trial or of the preparatory hearing. He is given no informed opportunity to exercise his discretion as the Bill now stands. The amendment is a workmanlike amendment which gives the judge a sensible discretion to be exercised judicially.

The problem of the unrepresented defendant has been mentioned already. However, those defendants fall into two categories: those who have never been represented; and those who become unrepresented at a late stage, sometimes for good reasons and sometimes for underhand and devious ones. The illiterate defendant, the defendant of modest intelligence, will not be able to cope with that obligation.

Perhaps I may deal with one matter which has not so far been referred to. The defence statement in Clause 5(5) deals with and contemplates the service of an alibi statement. It requires the furnishing of particulars of names and addresses of witnesses. It is notorious these days that witnesses are frequently intimidated. Why, in an appropriate case, if the judge is sensibly satisfied that a defence statement is simply not appropriate should he not be able to say so at the earliest possible stage? If we are to rely on the preparatory hearing as a device of some degree of practical utility, why cannot the judge waive the requirement if he thinks it appropriate to do so?

If I may say so without being unduly harsh, and as is suggested in the letter I received this afternoon dated 31st January, it is idle to suggest that in due time, at some further point in the distant future, a judge may well direct a jury not to draw adverse inferences. Surely the defendant, whether represented or not, wants a degree of certainty about the stance which he may legitimately adopt. If at an early stage the judge directs that the defence statement is not required or necessary in the interests of justice, why on earth should not the judge have that judicial power so to direct and determine?

Viscount Bledisloe

My Lords, it is plain from what has been said that there will be cases where the defence cannot comply, or cannot reasonably be expected to comply, with the requirement. However, the court has no power to dispense with it. All that is proposed is that at trial the judge can say to the jury or the magistrate can direct himself, "I am not going to draw an unfavourable inference" or "You, the jury, should not draw an unfavourable inference from that because this defendant could not be expected to do it."

Two things flow from that. Why on earth should the unfortunate defendant be left in a situation of hoping that the judge will be able to say that? Secondly, do the Government really want a situation where judges say to juries, "Members of the jury, this defendant is in default because he did not give a defence statement. It was totally ridiculous to expect him to do so, but under this silly Act I have in front of me I couldn't dispense with it. I had to tell him that he had to do it. But I now tell you that you are not to draw any inference because it was ridiculous to expect it." Do the Government really want their legislation described in such terms to juries in courts?

Viscount Runciman of Doxford

My Lords, I too support the amendment. I have not been privy to the letter which some Members received at a late stage this afternoon. From what I gather I perceive that it may well be the Government's concern—a reasonable one in principle—that to accept the amendment might lead to unnecessary delay or expense at some stage of the procedure leading up to trial. But, as others have said, it is a purely practical matter. I cannot for the life of me see that in this case there is such a risk. I do not understand how, if the amendment were accepted, the new regime could be exploited by an unscrupulous defence, to the disadvantage of the interests of justice.

As has also been said and as was very much a theme of the Royal Commission report, we assume that judges could and should take a more hands-on view of the conduct of cases than has perhaps happened in the past. Then the tradition of not descending into the arena was part of the judicial sub-culture, if I may put it that way.

However, we have only to envisage the kind of situation, of which examples have been given by practitioners, to appreciate that it will only be a small minority of cases. In that minority it will be obvious to prosecution, defence and court alike that the court will have no possible incentive to dispense with the defence statement unless the case for dispensing with it is obvious. It would fetter the judge by requiring him, as the noble Viscount, Lord Bledisloe, said, to say nothing at the preliminary stage where an intervention from the court would be most efficacious, only to rubbish the Act at the end of the procedure to ensure that the jury did not do the wrong thing. For the life of me, I cannot see why the Government should object to the amendment.

6.15 p.m.

Baroness Blatch

My Lords, perhaps I may say at the outset that I offer my profuse apologies to the noble Baroness, Lady Mallalieu. I regard it as a serious discourtesy that a letter was received by other people which was addressed to her personally. Secondly, it was my intention when I signed it that it should be, as it was, sent by hand yesterday morning, not only to the noble Baroness but to all other recipients. Why it did not arrive I do not know; I shall make it my business to find out. I apologise to all concerned, but particularly to the noble Baroness. She has had the embarrassment of knowing that other people sitting in the Chamber had the letter I addressed to her.

The amendment would provide that the accused did not need to give a defence statement if the court believed that it was not in the interests of justice for him or her to do so. We debated this amendment in Committee. I have reflected on the points made but I am afraid that I still see some drawbacks with the proposal.

First, there are good reasons for requiring defence disclosure and secondary prosecution disclosure as well as primary prosecution disclosure in Crown Court cases. It is meant to ensure so far as possible that the issues in dispute are narrowed and identified before the trial starts so that the trial itself may be conducted more efficiently. Also, if the accused does not disclose his defence in a defence statement, it will not be possible for the prosecutor to assess whether he has any additional undisclosed material which might assist that defence. The advantages of formalising the defence in a defence statement apply across the range of Crown Court cases.

Secondly, the amendment removes one set of procedural requirements only to create another. It would be necessary to devise a procedure for applications to a court for an exemption and for the consideration of the application by the court to take place at some point after primary prosecution disclosure. To enable the court to form a view on whether it was in the interests of justice to require a defence statement, the accused would need to set out the circumstances of the case in sufficient detail and the prosecutor would have to be able to make representations about the application. Disputes would need to be resolved at a hearing. It would add to court business as a whole and slow down the delivery of justice.

In the cases where the noble Baroness thinks an exemption might be justified it would be simpler for the accused simply not to make a defence statement at all. The only direct sanction for such failure is that it would be open to the prosecutor to seek leave to comment on this at trial under Clause 10. But Clause 10(3) provides that the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty. If there is a good reason for the failure to provide a defence statement—and I have heard some good reasons during the course of discussions on the amendment—the court would decide that the only proper inference to be drawn is that the accused was justified in not providing a defence statement. It will depend on the circumstances of the case to make that judgment.

In Committee, the noble Lord, Lord Harris of Greenwich, asked—he reminded us of it today—who would draw the attention of the accused to the requirement to produce a defence statement if he were unrepresented and tell him what his responsibilities were. We are currently considering various options for doing that, such as setting out the requirements imposed by the Bill in the covering letter which the prosecution will send when it makes primary prosecution disclosure or by way of a notice from the court when proceedings are transferred for trial. If the accused were unrepresented, the information would be served on him personally. We agree that the accused must not be put in the position of not producing a defence statement simply because no one told him that he had to produce one.

The noble Lord, Lord Harris, asked who would tell a semi-illiterate defendant what he must do to comply with the Bill. First, I cannot say exactly who, in prison, for example, would tell a prisoner what he must do to comply. It is a practical and detailed point which is important. Before the proposals are implemented, we shall address the particular point. I repeat that we are anxious to ensure that the accused knows what the responsibilities are and what is expected of him.

Lord Harris of Greenwich

My Lords, perhaps I may ask the noble Baroness a question. As she realises, we shall probably return to this matter at Third Reading. I suspect so, although it is in the hands of the noble Baroness, Lady Mallalieu. I urge the Minister to be in a position then to answer these questions. A number of us will he very concerned if the Government are not in a position to answer them when we return to the matter in two or three weeks' time.

Baroness Blatch

My Lords, I shall certainly bring as much information as I have available to me to bear on our proceedings at Third Reading. Noble Lords need to consider how this amendment would work without the procedures I spelt out that would need to be put in place in order for an application to be made not to make a defence statement. Without such further procedures, how do they see the amendment working?

The noble Viscount, Lord Colville, is right: the absence of a defence statement will not prevent a case from being listed before a hearing. The noble Lord, Lord Williams of Mostyn, referred to alibi defences. The provision in the Bill builds on a long-standing requirement that serves a useful purpose in enabling the prosecution to verify an alibi before a trial.

Lord Williams of Mostyn

My Lords, I wonder whether the Minister can help me. She dealt with the present regime of alibi statements. Is she aware that at the moment the judge has discretion to waive that requirement? If that is so and it works well, as the Minister just indicated, why is it not appropriate in the form and spirit of this amendment?

Baroness Blatch

My Lords, the words of the amendment refer to waiving a defence statement. It is a question of the process by which that is arrived at—whether a statement is simply not made and inferences are allowed to be drawn from that or whether there is a formal application not to make a statement in which case a whole raft of procedures would need to be put in place in order to consider that. There might need to be an extra hearing. What pleases me is that there is no disagreement about the ends that we wish to have served. We are mainly talking about means to an end, and whether a statement is simply not made and the judge and/or the prosecution is allowed to ascertain during the course of the trial why a defence statement was not made.

The noble Viscount, Lord Colville of Culross, argued in a previous discussion that if the accused was unfit to plead there would be no point in the defence trying to produce a defence statement. The noble Lord, Lord Williams of Mostyn, and, I believe, the noble Viscount, Lord Bledisloe, commented separately on the inability of the judge to waive the requirement to produce a defence statement. As I have just explained, it is open to the accused not to produce a defence statement at all and to rely on the court not to allow an improper inference to be drawn.

The purpose of a defence statement is to trigger secondary disclosure. Where there is no defence statement, that would not be triggered and the case could proceed to trial. To return to my earlier point, there is a great deal that brings us all together on this issue. But it is a question of means to an end. I ask the noble Baroness who moved the amendment to consider in her reply the particular process that would need to be in place if the amendment were followed—rather than following my suggestion of simply allowing the defendant not to make a statement and for inferences to be drawn from that—and to make sure, in the cases cited by my noble friend Lord Campbell of Alloway, the noble Baroness and others, that improper inferences were not drawn in those cases.

Baroness Mallalieu

My Lords, first, I accept the apology of the noble Baroness. It is unfortunate that the letter arrived elsewhere, and not with me, but I have now had an opportunity to see it. I am very much indebted to those who spoke, on every side of the House, who have a wealth of experience in relation to this aspect of criminal procedure. The noble Baroness cannot have failed to notice that she had little support for the apparent refusal of the Government at the moment to consider an amendment along these lines.

I am anxious, particularly in view of her reply to the noble Lord, Lord Harris of Greenwich—namely that the Government are looking in particular at ways of dealing with unrepresented defendants—that nothing I say now should press the Government into an entrenched position in relation to the amendment I proposed. I hope very much that, notwithstanding what the Minister just said, and notwithstanding what she wrote, she and those who advise her will go away and further consider the position.

I entirely accept what the noble Baroness said; namely, that the aim of all who spoke is to improve the legislation, to provide a practical working tool for those in the court and to enable the interests of justice to be best served. I do not think that the Minister is correct about the proposed amendment. She says that it would be necessary to devise some procedure to deal with it. That procedure is in force now in every single criminal trial. It is open at any stage before a trial for either party, or both parties, to arrange for the matter to be listed before the trial judge as an application in which both appear and both deal with the matter in hand. It may be a matter of law; it may be a matter of an alteration of bail; it may have something to do with the procedural progress of the case. That happens today; the procedure is there.

I stress that the proposal would relate to very few of the criminal cases coming before the court. In many of the cases I have in mind it would be apparent to all concerned that no purpose would be served by such a statement, and in such a case the matter could be dealt with very quickly in the usual way, as, in interlocutory matters, preliminary applications are now dealt with. It is not a question of having to devise any procedure for dealing with the consequences of the amendment.

With respect, the alternative suggested by the Minister undermines the whole purpose of the Bill; namely, to seek clarity and certainty as to the issues and proceedings before the trial in so far as that is possible. If a defendant who, for good reason, cannot make a defence statement is not to know whether he is liable to be criticised, or not until a late stage in the trial—when an application may or may not be made by the prosecution to criticise him or to ask the jury to consider drawing adverse inferences—that is undesirable, especially when the matter could have been resolved before the trial began.

I am unhappy, as the noble Baroness will appreciate, with the way she felt compelled to answer. I do not propose to test the feeling of the House; I think the noble Baroness will already have experienced the feeling in the Chamber among those who know a considerable amount about this aspect of the law. In the light of her remarks to the noble Lord, Lord Harris, I hope that, in considering the question of the unrepresented defendant, she will also feel it right to consider the other aspect of the matter, and in particular the illiterate defendant who will not be helped by the suggestion she has so far made, and the case where for good reason, no defence statement can be made.

It cannot be right in matters of this sort, where, as now happens, the trial judge is being asked to give rulings at earlier stages on more and more aspects of a trial that he should be deprived of making a commonsense order in a case where that is clearly necessary to all. I beg leave to withdraw the amendment. I look forward to the next stage, and I hope for some communication with the noble Baroness in the interim.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 6 [Voluntary disclosure by accused]:

[Amendment No. 21 not moved.]

Clause 7 [Secondary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 22: Page 4, line 36, at end insert ("and could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue;").

The noble Lord said: My Lords, this amendment goes with Amendments Nos. 23 and 27; indeed they all contain the same words. Those words reflect both the view of the Royal Commission on Criminal Justice and the view of the Lord Chief Justice in R. v Keane. The amendments may not be couched in exactly the kind of wording that the parliamentary draftsman likes, but I thought it better to leave them in their pristine, original state rather than attempt to write them in parliamentary language. For example, I realise that the expression "sensible appraisal" is one that a judge may use whereas the law will probably use the word "reasonable". Still, I hope that their provenance speaks in their favour. Although these amendments were moved at Committee stage, the answers were thoroughly unsatisfactory and I thought it necessary to draw the attention of the House to them at this stage.

The Bill provides two gateways for the disclosure of material to the defence: first, material that undermines the prosecution case; and, secondly, material that the prosecution considers may assist the defence as disclosed in the initial statement of the defence. In discussion on previous amendments we on these Benches and other noble Lords have expressed the view that the balance between primary prosecution disclosure and defence disclosure is not right. On the basis of inadequate information about the prosecution the other side is required to make a full statement of the defence. It is on the basis of that case as stated by the defence that we now come to the secondary disclosure by the prosecution. We believe that the gateways for secondary disclosure are too narrow. For example, there may he material which is not directly related either to the prosecution case as prepared (though it may not necessarily have been disclosed) or to the defence statement as provided, but nevertheless it may be relevant to the defence. Indeed, in certain circumstances it may persuade the defence that it is right to plead guilty and save public money on a lengthy trial. We believe that not only is that view correct but that it is one shared by the Royal Commission and the Lord Chief Justice in the case that I have cited.

Once the defence has stated its case, particularly in the detail that is required, there is no reason why the defence should not have access to all relevant, or potentially relevant, material. If, as a result, a new defence is raised that, too, is in the interests of justice. There should not be just one opportunity for the defence to disclose its position; otherwise, it simply means that the defence will say something new at the trial which may or may not trigger an opinion from the judge to the jury about the significance of it. We believe that when the case comes to trial the position that has been provided for under the disclosure procedures, both prosecution and defence, should be the most up-to-date possible statement of the defence, and any changes should have triggered further prosecution disclosure.

I do not suggest that this will happen in more than just a small number of cases, and I do not believe that it needs to be an expensive or protracted procedure. But there are cases in which it will be necessary, and the criterion is whether the preparation for the trial in the form of defence and prosecution disclosures is accurate, up-to-date and sufficient to make possible a fair trial. To do that, we suggest that these further obligations on the prosecution are necessary and desirable. I beg to move.

Lord Renton

My Lords, I wonder whether it has occurred to the noble Lord, Lord McIntosh of Haringey, that as Amendment No. 22 commences with the word "and" what follow are words of limitation; that is to say, they will limit the prosecution's obligation. Subsection (2), which is very clear, fastens upon the prosecutor a precise obligation: The prosecutor must … disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given to the prosecutor under section 5 or 6 … ". It is significant that Amendment No. 23, which the noble Lord suggests should be considered with Amendment No. 22, commences with the word "or", so there is no limitation there. If in Amendment No. 22 the word "and" were replaced by the word "or", the rest of that amendment would not be words of limitation but would enlarge the opportunities of the defence. Therefore, starting as it does with the word "and", I believe this amendment to be self-defeating. The question is whether, assuming that "or" were put in instead of "and", it would be really necessary.

The situation that is envisaged in subsection (2)(a) of Clause 7 is one that arises when the prosecutor has founded his position on material that has not previously been disclosed to the accused and which may reasonably he expected to assist the defence. That is a worthy object, but I am not sure that it is necessary, even if the word "or" is used instead of the word "and", to elaborate it in the way that the amendment seeks to do. I shall be interested to hear what my noble friend on the Front Bench has to say about it. However, I doubt whether, even if they were not words of limitation, they would carry the matter much further in favour of the defence.

Baroness Blatch

My Lords, this is the first amendment on the Bill in which my noble friend Lord Renton has intervened and in which I have been personally involved. It gives me the opportunity on behalf of the whole House to say how marvellous it is to see the noble Lord back in his place and taking part in our deliberations. I know that had he been fit and well he would have been pretty active in the Bill at an earlier stage.

The first amendment seeks to widen the test for prosecution disclosure. It seeks to expand Clause 7(2)(a) by adding a new category of material which the prosecutor is required to disclose; namely, that which can be seen on a sensible appraisal by the prosecution to be relevant, or possibly relevant, to an issue in the case, or which raises, or possibly raises, a new issue whose existence is not apparent from the evidence that the prosecution intends to use, or which holds out a real, as opposed to a fanciful, prospect of providing a lead on evidence which goes to a relevant or new issue.

The second amendment has the same effect as the first in relation to the description of prosecution material which the accused may apply to have disclosed under Clause 8 after secondary prosecution disclosure. The third amendment, in a similar vein, considerably widens the test for prosecution disclosure in Clause 9 under the continuing duty to disclose. If that is the intention, I must say that I do not agree with it. The test of relevance to an issue in the case is considerably wider than the tests for prosecution disclosure currently in the Bill. The prosecutor would be required to disclose considerably more material than the Bill required.

In effect, the new test is the same as the current test for prosecution disclosure, as set out by the Court of Appeal in the 1994 case of R v. Keane. It requires the prosector to disclose in effect all material relevant to an issue in the case, whether or not it has any bearing on the defence chosen by the accused. That imposes heavy burdens on the police and prosecution relating to the disclosure of material which may be completely irrelevant to the actual defence. It goes to the heart of the Bill and flies in the face of what this Bill is all about.

In response to the intervention by my noble friend Lord Renton, I feel that he is absolutely right. At Committee stage I said, in response to the amendment, that as it was drafted: the prosecutor is not required to disclose material unless it satisfies all three elements. This is because the amendment is introduced with the word 'and' rather than 'or'. Because the existing test in (ii) is more restrictive than the new test in (iii), material which may he relevant but which does not assist the defence will not need to he disclosed. The same is true of Amendment No. 36"— That was my reference to the number of the amendment in the Bill at that time— in relation to the description of prosecution material which the accused may apply to have disclosed".—[Official Report, 18/12/95; col. 1482.] I am grateful to my noble friend for his intervention. In the light of that explanation, I hope that the amendment will not be pressed.

Lord McIntosh of Haringey

My Lords, all I can say to the Minister and the noble Lord, Lord Renton, so far as the "and/or" issue is concerned is, "It's a fair cop, guy!" Not only am I guilty in not having noticed it today but I am guilty in not having properly read the Minister's speech at Committee in which she pointed out the defect that I have now repeated. That is a pretty poor record in three amendments.

But the issue itself will not go away. I am not ashamed of having brought it forward again. In essence, the argument boils down to the fact that the Government know perfectly well what the Royal Commission recommended and know perfectly well what the Lord Chief Justice said in R v. Keane; but, for reasons of economy and of trying to cut down the workload of the prosecution, they are prepared to tighten the restriction and limit the obligations on the prosecution to make secondary disclosures to the defence after the first disclosure has been made.

That is an administrative approach to justice which I find wholly deplorable. I do not even believe that it will save money. It may lead to less effective trials, more appeals and more public expenditure in the long run. The object of this disclosure procedure, the whole of it in Part I, should be that we arrive at the trial with no possibility of misunderstanding and no possibility of ambush defence or ambush prosecution; and we arrive at the trial able to give a jury or magistrates the opportunity to come to a conclusion without being confused by issues of law which could have been resolved before the matter came to court or by issues on the admissibility of evidence or indeed on the nature of the evidence. The trial is the occasion on which such matters are put before the magistrates, a judge or a jury and if it is done so inadequately because disclosure has been inadequate, the trial will be the worse.

I am sorry to have had to say that. I am not opposed in any way to trying to limit public expenditure. But I simply do not believe that the Bill as drafted will produce that result. Having said that, in view of the time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Application by accused for disclosure]:

[Amendment No. 23 not moved.]

6.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 24: Page 5, line 20, leave out second ("the") and insert ("any").

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 25, 28 and 29. I have, perhaps wrongly, already referred to the subject matter of those amendments in discussion on previous amendments. Again, this amendment is part of the argument that what comes before the court should be the best possible case to enable the court to reach a just conclusion, convicting the guilty and not convicting the innocent. These amendments seek to ensure that there is the possibility of subsequent defence statements which would in turn trigger secondary disclosure by the prosecution.

The object is not at all to enable the defence to wriggle around and provide many alternative defences. If it were trying to do that in order to obtain more information from the prosecution, it would very rapidly become evident. The attempt to do so by defence statements would be discredited and a judge could be asked to rule on the matter. Surely, there must be a possibility, because there is secondary disclosure, that the secondary disclosure by the prosecution will in turn lead the defence quite properly to think of arguments which had not otherwise been put and to make perfectly proper changes to the nature of the defence.

In the same terms and in the same spirit in which I moved the previous amendments, I beg to move.

Lord Mackay of Drumadoon

My Lords, as your Lordships will appreciate, these amendments to Clauses 8 and 9 remove a specific reference to the defence statement given under Clauses 5 or 6 and replace it with a reference to any defence statement given to the prosecutor. The effect would be that the prosecutor would be under a duty to disclose material which might reasonably be expected to assist the defence in any defence statement, whenever produced, and that duty, which would keep on recurring as new defence statements were produced, would continue until the end of the trial.

When considering the effect of the proposed amendments, it is important for your Lordships to bear in mind the provisions of Clause 9(2), which place upon the prosecutor a duty to keep under review the question whether at any given time there is prosecuting material which might undermine his case. That is a duty which goes right through until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

In my submission, those effects would have very undesirable consequences. They would encourage accused persons to structure their original defence statement in not so full a manner as they might otherwise do. If they had a right to come forward with a second or third defence statement, they would, so to speak, test the water by putting in a defence statement arid seeing what secondary prosecution disclosure evidence that produced. They might then decide to amend their original defence in a subsequent statement or indeed decide to put forward a completely different defence with an inconsistent effect. It is certainly true, as Clause 10 makes clear, that such a change of tack might be open to be commented upon. Nevertheless, that process would continue, with a consequent burden on the prosecution, but, more importantly, a consequent delay in getting the trial under way.

Importance is placed upon, and reference made to, the continuing obligations under Clause 9, both in relation to the validity of the prosecution case and, under Clause 9(5), the duty to keep the defence case under review to see whether any further material requires to be disclosed. However, in my view it is unnecessary for the amendments to be tabled. The objective may be understandable and, to some extent, commendable; but the effects are undesirable. For those reasons, I hope that the noble Lord will not press the amendment.

Lord McIntosh of Haringey

My Lords, I am grateful for that robustly worded reply. The Lord Advocate is clearly convinced that the defence will abuse the process in a significant number of cases by putting forward an inadequate disclosure on the first occasion in order to "test the water" and try it out in other ways.

I should have thought that that was an extraordinarily risky procedure for the defence. I cannot imagine circumstances in which a defence lawyer—as an outsider I look around for legal confirmation—would proceed in such a way. If I were a defence lawyer, I would be wary of putting forward an inadequate defence, in turn triggering an inadequate secondary disclosure from the prosecution, in order to change that defence afterwards. I would he well aware that I may not get an opportunity to change it afterwards and that my unwillingness to use the argument in my preliminary defence disclosure at the trial may be commented on adversely by the judge.

Therefore, I do not believe that, as a matter of practicality, it will work out in the way that the noble and learned Lord says. I recognise that he has far more experience in these matters than I do. I shall consult with those who advise me, who also have more experience than I do, to see whether he is right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Clause 9 [Continuing duty of prosecutor to disclose]:

[Amendments Nos. 26 to 35 not moved.]

Baroness Blatch moved Amendment No. 36: Before Clause 11, insert the following new clause—

PUBLIC INTEREST: REVIEW FOR SUMMARY TRIALS (".—(1) This section applies where this Part applies by virtue of section 1(1). (2) At any time—

1. (a) after a court makes an order under section 3(6), 7(5), 8(5) or 9(8), and
2. (b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned,

the accused may apply to the court for a review of the question whether it is still not in the public interest to disclose material affected by its order. (3) In such a case the court must review that question, and if it no longer believes that it is not in the public interest to disclose material to any extent—

1. (a) it shall so order, and
2. (b) it shall take such steps as are reasonable to inform the prosecutor of its order.

(4) Where the prosecutor is informed of an order made under subsection (3) he must act accordingly having regard to the provisions of this Part (unless he decides not to proceed with the case concerned).").

The noble Baroness said: My Lords, in moving Amendment No. 36, I shall, with permission, speak also to Amendments Nos. 37 and 39.

The amendments arise from a point made in Committee by the noble Lord, Lord Williams of Mostyn. He argued that the constitution of a bench of magistrates often changed in the course of a summary trial, and that in those circumstances it would not be possible for a magistrates' court to comply with the duty imposed by Clause 11 to keep under review a ruling on the disclosure of sensitive material. I agree with that, although (for the reasons I gave in Committee) I do not agree with the solution he proposed; that is, to transfer from the magistrates to the clerk the responsibilities arising from Clause 11. The difficult and important decision of whether it is in the public interest to disclose sensitive material should always be taken by a judge or magistrate.

I have reflected on whether it is right in principle that a magistrates' court should be under a duty to keep a disclosure ruling under continuous review. Unlike in the Crown Court, magistrates determine questions of both law and fact. If they order that sensitive material must not be disclosed, they will have to determine the guilt or innocence of the accused on the basis of the evidence adduced at trial but in the knowledge of other material of which the accused is unaware. There is a danger of bias in those circumstances.

The High Court considered this issue last year in R. v. South Worcestershire Magistrates ex parte Liffey. It held that magistrates had a discretion to disqualify themselves from hearing the case in those circumstances, and that in some cases they should disqualify themselves, even if the trial had already started. Requiring them to keep a non-disclosure ruling under review has the effect of keeping the undisclosed material in the front of their minds and reinforcing the danger of bias.

Accordingly, we have come to the view that the right course is to exempt a magistrates' court from the duty to keep non-disclosure rulings under continuous review (with which it often cannot comply anyway). That is the effect of these amendments, which confine the duty of review in Clause 11 to cases which are to be tried in the Crown Court and insert a new clause before Clause 11 for cases which are to be tried in a magistrates' court. Apart from exempting a magistrates' court from continuously keeping under review a ruling on disclosure, the provisions in summary trials for considering applications for disclosure are to he the same as for trials on indictment. The accused will still be able to apply to the court for a review of such a ruling; and, when he does, we envisage the clerk bringing the papers to the attention of the bench constituted to try the case at the time of the application. The detailed procedure would be governed by the rules of court to be made under Clause 12.

Amendment No. 39 expands Clause 12 to refer to the provisions of the new clause to be inserted before Clause 11. I beg to move.

Lord Williams of Mostyn

My Lords, I am grateful for the generous way in which the Minister approached this issue. It is a difficult matter because of the nature and the constitution of the magistrates' court. The Minister's response is an improvement, but I still have two problems. I put them forward in a spirit of trying to improve the situation.

First, one still has the problem of the unrepresented defendant. An unrepresented defendant will not be equipped to consider making the application or, indeed, to be able to make the application—the first step may be the most important. I know that the Minister cannot bind the Legal Aid Board, but it may be useful for the House to be given an indication—not necessarily at this precise moment—that the Government's view is that no defendant should be unrepresented in such difficult circumstances. I stress that it is the first question that is the important one; namely, how is an unrepresented defendant to know the advantages and balances before he comes to a decision in regard to an application?

The second problem, which I put forward for the Government's consideration at a later stage, is whether or not the application for review should be made to the Crown Court. I appreciate that in Amendment No. 38, tabled in my name and that of my noble friend Lord McIntosh, there is reference to the duties being laid upon a clerk or a stipendiary. I took the points made by the Minister on the last occasion in Committee and also in her letter as being points of some validity. I simply wonder whether, because the composition of the magistrates' court fluctuates and changes due to the usual difficulties we know so well, an application for review should be made to the local Crown Court. That would have a number of benefits, not least a more consistent and coherent approach to these questions.

I do not say this with any disrespect to the magistracy, for whom I have the highest regard, but these are delicate and tricky questions of law, judgment and balance. There is a serious question as to whether these decisions should always be made by the Crown Court. However, if they have to be made by the magistrates in the first instance, appeal ought to be to the Crown Court. I repeat that I am grateful for the approach adopted by the Minister on this matter.

Lord Renton

My Lords, I am glad that the noble Lord, Lord Williams, supports the amendment. In principle, I am sure that it is in the interests of justice. However, I am a little puzzled—I come to this afresh, not being present at Committee stage—as to why we must deal with the question in a purely negative way. Indeed, subsection (3) contains a double negative. I should have thought that the matter could have been expressed in a more open way, so that the court, when dealing with it, decides whether or not it is still in the public interest.

The phrase in subsection (3), "if it no longer believes" assumes that the court had earlier taken a negative decision when the court may not have done so. The court may have left the matter open.

I may be showing my ignorance over this matter but I never came across the situation when I was last in practice and therefore I am a little mystified.

Baroness Blatch

My Lords, I have heard enough during the debate to persuade me not to press the amendment and I shall reflect on what has been said, but I add the caveat that it is without prejudice to the outcome. The noble Lord, Lord Williams of Mostyn, made two important points. I shall reflect on the negative nature of the amendments.

Lord McIntosh of Haringey

My Lords, in that event I shall not move Amendment No. 38 because my noble friend Lord Williams has referred to that matter and we could make progress more effectively in the gap before the next stage.

Amendment, by leave, withdrawn.

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

[Amendments Nos. 37 and 38 not moved.]

Clause 12 [Rules of court]:

[Amendment No. 39 not moved.]

Clause 13 [Other statutory rules as to disclosure]:

Lord Mackay of Drumadoon moved Amendment No. 40: Page 8, line 37, leave out subsection (3).

The noble and learned Lord said: My Lords, in speaking to Amendment No. 40 I shall, with permission, speak also to Amendments Nos. 115, 142 and 143, which are related to it.

These are technical amendments which amend references to the law on alibi defences in other statutes as a consequence of the repeal of the current provisions by this Bill and their replacement with new provisions linked to the scheme for defence disclosure. The amendments also ensure that the current provisions on alibi defences continue to operate in military proceedings, which are not affected by the disclosure scheme in the Bill. Parliamentary counsel has tidied up the drafting of the Bill by placing all the references to alibi defences together in one new clause at the end of the Bill. As a consequence, they need to be relocated towards the back of the repeals schedule (Schedule 3) and the other amendments seek to achieve this. I beg to move.

Lord Williams of Mostyn

My Lords, the draftsman may have tidied up the wording but he has not tidied up the situation about which I earlier complained. There is a discretion in the judge to waive the alibi notices but on a defence statement as presently advised the Government intend that there should not he. Having said that, I will say no more.

On Question, amendment agreed to.

Clause 14 [Common law rules as to disclosure]:

[Amendment No. 41 not moved.]

Baroness Blatch moved Amendment No. 42: Page 9, line 24, leave out ("or").

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

Baroness Blatch moved Amendments Nos. 44 and 45: Page 9, line 26, leave out ("1(2)") and insert ("1(2)(a)"). Page 9, line 26, at end insert— ("(c) the count is included in the indictment (where this Part applies by virtue of section 1(2)(b)), or (d) the bill of indictment is preferred (where this Part applies by virtue of section 1(2)(c)).").

On Question, amendments agreed to.

Lord Lucas

My Lords, I beg to move that further consideration on Report be now adjourned.

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