Lords Sitting of 5 February 1996

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

THORP Reprocessing Plant: Safety
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they have received reports of breaches of safety rules at the THORP reprocessing plant at Sellafield (Observer 21st January 1996), whether stipendiary magistrate Gillespie has said that "many serious errors …must be attributed to more than mere negligence" and whether they are instituting a public inquiry.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, the report in the Observer is misleading. The Health and Safety Executive's Nuclear Installations Inspectorate has confirmed that there were no reportable breaches of the site licence conditions at the THORP reprocessing plant at Sellafield. I have placed a copy of the magistrate's full judgment in the Library of the House. The Nuclear Installations Inspectorate will not allow nuclear plants to operate if it has doubts about their safety. There is no need for a public inquiry.
Lord Jenkins of Putney: My Lords, I am grateful to the noble and learned Lord for that reassuring Answer. Is he aware that there is some concern that those assurances may not be entirely justified? Is it not desirable to have an examination of the situation? I must tell the noble and learned Lord that I have not read the document that has been placed in the Library and perhaps I should reserve any further questions until I have done so.
Lord Fraser of Carmyllie: My Lords, in some respects I am not surprised that the noble Lord has
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expressed some concern. The report in the Observer says that documents released to Greenpeace reveal that there was an incident in which a 120-tonne flask of nuclear fuel from Germany was damaged during unloading and that that was not recorded in the plant's accident log. In addition, it claimed that safety checks on the flask, including radiation and monitoring to ensure that there was no dangerous leakage, were bypassed.
I would have gained a clear impression from that statement that the flask was full; in fact, it was empty at the time. The damage that occurred was to one of the rings on the flask and that flask was one that was not used and not to be used at Sellafield. If the noble Lord reads the judgment of the stipendiary magistrate he will see that he reports specifically that the flask was devoid of nuclear matter at the time. Security checks were carried out. I can only conclude that part of Greenpeace's mission is to mislead.
Lord Mason of Barnsley: My Lords, is the Minister aware that of course we do not condone any safety breaches at the Sellafield plant, but neither do we condone the dangerous practices of Greenpeace activists who were chaining themselves to a railway track to prevent the movement of materials there? To put matters into proper perspective, will the Minister tell the House for how long the Sellafield plant has been operating and how many people have been killed through accidents there?
Lord Fraser of Carmyllie: My Lords, I cannot tell the noble Lord exactly how long, but the plant has been operating for a considerable period of time and has a very good safety record. It is completely open about any small incidents that might occur. If anyone has any concerns, the very skilled Nuclear Installations Inspectorate is called in. I wish to emphasise that on this occasion there was no question of a cover-up. The

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inspectorate concluded and, indeed, confirmed that there was no reportable breach of the site licence conditions on that day.
Lord Jenkins of Putney: My Lords, can the Minister explain the reason for the very serious remarks attributed to the stipendiary magistrate? He said:
"Many serious errors…must be attributed to more than mere negligence".
Lord Fraser of Carmyllie: My Lords, the noble Lord indicated that he will read the judgment and I certainly recommend that he does so. It is long and elaborate. The points which the magistrate made, which are used in direct quotations in that article, relate to some written documents—what is called a quality plan. As British Nuclear Fuels has subsequently explained, that plan does not require Health and Safety Executive approval. However, I urge the noble Lord to read the context within which the stipendiary magistrate made his remarks.
Lord Prys-Davies: My Lords, I am sure that the Minister will know that the Government of the Republic of Ireland have expressed their concerns about the adequacy of the safety regulations at this plant. Will the Minister confirm whether the Government of the Republic of Ireland are still pursuing those concerns or whether they are satisfied about them?
Lord Fraser of Carmyllie: My Lords, I understand that a civil case is being brought in the Irish courts by four residents of Dundalk in relation to the operations at Sellafield. The outcome of an appeal by BNFL is awaited on whether the Irish courts have jurisdiction to hear the case. In view of the fact that the outcome of an appeal is pending, it would be inappropriate for me to offer any further comment.

AIDS: Treatment Costs
2.43 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
The number of patients currently being treated for AIDS, the average cost per patient for hospital treatment, and whether the cost per patient varies from hospital to hospital.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the number of people being treated for AIDS in the United Kingdom in 1994 was around 4,000. The annual average cost of hospital treatment for an AIDS patient is in the region of £21,000 and costs vary from hospital to hospital.
Baroness Gardner of Parkes: My Lords, I thank my noble friend for that Answer. Is she aware of the concern about this year's change in the method of funding AIDS treatment clinics, which until now has been ring-fenced? In view of the health service principle
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of the money following the patient, will she consider reassessing the situation at the end of the year to discover whether the money for treating AIDS cases went where the patients were treated?
Baroness Cumberlege: My Lords, yes. The money that is given to regions by the department takes into account the caseloads for HIV and AIDS within each region. Regions then take into account the treatment centres when allocating their funding. However, the formula is not so fine-tuned that the money to regions is exactly related to patient workloads. We expect regions to take that into account when considering the trusts which run the centres.
Lord Kilmarnock: My Lords, while the latest PHLS report is welcome news, projecting a declining trend in new AIDS cases from 1999, for which everyone concerned—the Government, the voluntary sector and the medical profession—deserves congratulation, will the Minister accept that the total caseload, even in the revised projections, is forecast to rise from 3,485 in 1995 to 3,690 in 1996 (approximately 200 additional cases) and to continue that upward trend for the next three years? In those circumstances, will the Minister assure us that that trend will be taken into account when the Government make their cost calculations for the treatment and care of AIDS?
Baroness Cumberlege: My Lords, yes, I can give that assurance. In fact, the trend is likely not to rise by 10 per cent. but to reduce by 10 per cent. according to the predictions. The funding in real terms is reduced by 7.7 per cent. so there is a margin for health authorities.
Lord Mowbray and Stourton: My Lords, my noble friend said that the costing appeared to be falling. Can she say whether the number of new AIDS cases that are reported in this country is on the increase or on the decrease?
Baroness Cumberlege: My Lords, it is on the increase. If one looks at specific groups, such as men who have sex with men or bisexual men, the numbers are decreasing. However, the numbers in other groups, such as drug users, are increasing.
Lord Molloy: My Lords, the Minister has given some remarkable details today. However, will the Government consider issuing more information in order to warn people of the danger of AIDS and the fact that there are measures which can be taken to stop them catching this awful disease?
Baroness Cumberlege: My Lords, three national campaigns are being run at the moment. The first is targeted at young people, the second at gay and bisexual men and the third at holidaymakers. In addition, a great deal of work is going on locally through health promotion departments.
Lord Stoddart of Swindon: My Lords, in a recent answer given to my noble friend Lady Jay the Minister said that the total amount spent on AIDS patients by the National Health Service was £236 million a year. That

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does Not appear to tie up with the figure of £21,000 per patient that the Minister has given today because the total amounts to £84 million. Will the Minister explain the discrepancy?
Baroness Cumberlege: My Lords, the AIDS budgets are made up of a number of different factors. There is the national aids public campaign, the health authorities' money for treatment and care and for health promotion, and there is also money to voluntary organisations and local authorities. All that amounts to £281 million this year.
Baroness O'Cathain: My Lords, will the Minister confirm that much of the money is spent on research? A document published last year by the Institute of Economic Affairs Limited pointed out that for every person who dies of heart disease in this country the research funds amount to £51 and for every person who dies of AIDS in this country the research funds amount to £285,000.
Baroness Cumberlege: My Lords, the research funds for coronary heart disease are considerable because they are made up of money from all kinds of different charities and other organisations. However, the money spent on AIDS must come from the Government because no charities or other organisations contribute to it.
Lord Rea: My Lords, the Minister confirmed that the funding allocated to the treatment of AIDS will fall by 7.7 per cent in the coming financial year. That confirms the figure given by the Providers of AIDS Care and Treatment. In view of the fact that the number of AIDS cases does not appear to be declining and will not decline for the next three years and that the preventive treatment for AIDS is becoming more complex and expensive, how can the Minister justify that reduction in funding?
Baroness Cumberlege: My Lords, as I tried to explain, the reduction in funding is less than the reduction in predicted numbers.

Property Services Agency
2.49 p.m.
Lord Haskel Lord Haskel asked Her Majesty's Government:
How much public finances benefited from the privatisation of the Property Services Agency.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, the sale of the five Property Services Agency building management businesses saved the taxpayer over £100 million by comparison with the alternative of closure. The sale of the Property Services Agency projects business in December 1992 also saved money over the alternative of closure.
Lord Haskel: My Lords, is the Minister aware that according to the National Audit Office the Government spent nearly £220 million, including £18.4 million alone
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on consultants, to privatise the Property Services Agency? Has the Minister taken that expenditure into account when calculating the income which has been received from the privatisation?
Earl Ferrers: My Lords, it was decided that civil servants were not the best people to do the work which the Property Services Agency did. Therefore, either it had to be closed or it had to be sold. The cost of the closure would have been somewhere between £195 million to £310 million—the mid-point of that was £251 million—whereas the cost of the sale was £141 million. Therefore, the taxpayer has benefited.
Lord Ezra: My Lords, the noble Lord, Lord Haskel, in asking this Question referred to the important report of the National Audit Office. Is the noble Earl aware that paragraph 4.26 on page 35 of that report refers to the estimated indirect costs of closure? It states that a large part of the costs of closure were subjective and that,
"The National Audit Office were, therefore, unable to validate these figures".
Therefore, is it not a little surprising that the noble Earl spoke with so much certainty about the benefits of selling as opposed to closing?
Earl Ferrers: My Lords, I am surprised the noble Lord, Lord Ezra, should say that because I said that the costs of closure would be somewhere between £195 million to £310 million. I should have thought that I had not described those figures with pinpoint accuracy and that I provided a certain range. Of course, it is perfectly true—I am not hedging—that these figures are difficult to get at because some of the payments were made over a period of years. It is difficult to discern how much one would have saved had the PSA been privatised earlier. However, I can tell the noble Lord, Lord Ezra, that over the six years from 1990 to 1996, if the privatisation of the Property Services Agency had followed the pattern of other privatised businesses, there would have been a saving of about 20 per cent., or £1,500 million to £2,000 million, over the six years.
Lord Haskel: My Lords, is the Minister aware that in order to maximise the proceeds of the sale the Property Services Agency was divided into five units and each one was sold separately? Can the Minister explain why W. S. Atkins was paid £11.5 million to acquire the Manchester division? Noble Lords will not be surprised that the National Audit Office in its report considered this to be,
"an unusual way of effecting a sale".
Earl Ferrers: My Lords, the noble Lord, Lord Haskel, will be the first to appreciate that it is not every day that one sells an organisation such as the Property Services Agency. We therefore took advice from consultants and they suggested that it would be best to split the organisation into five parts. Having done that, one then has to obtain the best possible price, or the least possible cost. We took their advice and that is why that part of the PSA was sold in the way that it was.

Turkey: Human Rights
2.53 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What visits have been made by officials from the British embassy in Ankara to the emergency region during and after the Turkish general election, and what conclusions they have reached about the state of human rights in the region.
Lord Chesham: My Lords, officials from the British embassy visited Diyarbakir, Mardin and Midyat from 6th to 8th November. The next visit will be to Diyarbakir in mid-February. Their visits and other sources confirm that there are grounds for continuing concern about human rights in the emergency region. We continue to urge the Turkish authorities to deal with the conflict in the south east with due regard for human rights and the rule of law.
Lord Avebury: My Lords, did the officials obtain any information about the voting arrangements for the 2½ million people who have been forcibly displaced from their homes in the south east by the conflict? Can the noble Lord say whether on the advice that he has received so far the ceasefire which was announced by the PKK has been properly observed, and what inquiries have been made about the murder of 11 passengers in a minibus near Sirnak recently which was ascribed to the PKK by the authorities but which eye witnesses have now said was perpetrated by the security forces themselves?
Lord Chesham: My Lords, as to the second part of that question, the credibility of any ceasefire declarations by the PKK is to be questioned. The PKK conducts terrorist acts which we unreservedly condemn. However, it is for the Turkish Government to decide how to react. It is unclear who is responsible for the killing of 11 people in a minibus in Sirnak province on 16th January. The Turkish Government initially stated that it was carried out by the PKK. The PKK has denied this.
Lord Cledwyn of Penrhos: My Lords, is it not the case that this is an extremely serious matter and that the conduct of the Turkish Government is totally unsatisfactory? While it is good to know that the Government have made representations to the Turkish Government, is not this a matter which should be taken to the United Nations as well?
Lord Chesham: My Lords, we are trying every area that we can to exert influence on the Turkish Government to respect the human rights situation in Turkey.
Lord Cledwyn of Penhros: My Lords, I asked a question which I hope the noble Lord will be good enough to answer. Have the Government considered taking this matter to the Security Council of the United Nations?
Lord Chesham: My Lords, the most effective way of helping progress in human rights is to encourage
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closer ties between Turkey and the western institutions. A Turkey/EU customs union and increased political dialogue are an important part of that process.
Lord Archer of Sandwell: My Lords, I recognise the dilemma that isolating Turkey will simply encourage a move towards fundamentalism. But will it be made clear to the Turkish Government that that argument rests on the assumption that the present Turkish Government are more likely than any alternative to observe human rights; to reach an accommodation with the Kurds; to put an end to the torture and the disappearances; and to permit free expression? If there is nothing to choose between the present Turkish Government and the alternatives, then isolation is the inevitable consequence.
Lord Chesham: My Lords, it is important that we set the concerns about human rights in a broader context. We want Turkey firmly anchored to western institutions. The closer Turkey is to western institutions, the better we are able to put across our concerns on human rights and the more influence we can bring to bear. Co-operation is a much more effective approach than confrontation.
Lord Wyatt of Weeford: My Lords, will the Minister give an assurance that so long as human rights are treated in Turkey in much the same way as they are treated in Bosnia, we will oppose Turkey joining the European Union?
Lord Chesham: My Lords, I wish to stress the point that I have made; namely, that the closer we can get to Turkey, the more influence we can put on it to make certain that the human rights situation is properly regarded.
Lord Jenkins of Putney: My Lords, will the noble Lord answer the specific question put by my noble friend Lord Cledwyn concerning reference to the United Nations?
Lord Chesham: My Lords, I cannot answer that question. I shall write to the noble Lord with the answer.
Lord Rea: My Lords, is the noble Lord aware that in the recent elections in Turkey there was widespread intimidation of supporters and members of HADEP—the party that represents Kurdish interests—as well as the inability of many of the displaced persons to vote at all, with the result that that party did not gain representation in the Turkish Parliament? Will this not drive Kurdish people to support the PKK, whereas if they had had democratic representation in parliament, that might possibly have moved them away from supporting that particular organisation?
Lord Chesham: My Lords, some problems did occur in the election on 24th December. We are grateful to the noble Lord, Lord Hylton, who is not present, for sharing with us his observations following his visit to Turkey in December, in particular on the situation in the south east. It is unfortunate that the 10 per cent. national threshold prevented smaller parties from winning seats in parliament. Neither HADEP nor MHP is represented

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In that parliament. However, HADEP did well in areas where it was expected to do so. There is no doubt that some harassment of the HADEP party took place. However, it is not clear that that affected the party's performance in the polls. The outcome of the general election for the three largest parties broadly reflected the preference of the people.
Lord Stoddart of Swindon: My Lords, can the noble Lord explain why closer ties with Turkey are deemed to be the best way to eliminate human rights abuses in that country, whereas in the case of Nigeria, where abuses of human rights have taken place and still occur, isolation is recommended?
Lord Chesham: My Lords, that is slightly wide of the Question on the Order Paper. I remind your Lordships that there will be a full debate on this matter on 14th February.
Lord Stallard: My Lords, the noble Lord seems to he optimistic about the outcome of discussions with Turkey. On what does he base his optimism? How does he equate that with the abysmal record of Turkey over Cyprus, despite 20 or so years of negotiation?
Lord Chesham: My Lords, I would hope that one could always be optimistic in these matters. There is still much room for improvement. We shall urge the new Turkish Government, when in place, to maintain the momentum of democratic and human rights reforms and in relation to Cyprus.
Lord Avebury: My Lords, has the Minister noticed that in the annual report of the OSCE reference is made to 12 conflict situations in the region where the OSCE is involved in conflict resolution and crisis management and that the situation in the south east of Turkey is the one instance where the OSCE is excluded? How does the noble Lord reconcile that fact with his assurance that membership by Turkey of western institutions will enable us to have any influence on it?
Lord Chesham: My Lords, I am afraid that I rather lost the thread of that question. Is the noble Lord prepared to repeat it?
Lord Avebury: My Lords, briefly, how does the noble Lord reconcile the fact that Turkey has been a member of the OSCE for many years but has not allowed the OSCE to visit the region with his assurance to the House that Turkey's membership of western institutions will enable us to influence it in the direction of better observance of human rights?
Lord Chesham: My Lords, we continue to stress to the Turks the importance of respecting international obligations on human rights. However, we believe that a more interventionist approach, such as using all enforceable mechanisms available through the OSCE, would be counterproductive. Turkey invited the OSCE parliamentary assembly delegation to visit in May 1995.
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If interventionist mechanisms had been applied the delegation might not have been able to enter the country at all.

Edinburgh Assay Office OrderConfirmation Bill
Considered on report.

Arbitration Bill [H.L.]
Lord Fraser of Carmyllie: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the order of commitment to a special Public Bill Committee of 18th January last be discharged and that the Bill be committed to a Committee in the Moses Room.—(Lord Fraser of Carmyllie.)
Lord Wilberforce: My Lords, from these Benches I should like to express gratitude to the noble and learned Lord for his decision.
On Question, Motion agreed to.

Criminal Procedure and Investigations Bill [H.L.]
3.4 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that further considered on Report.
Moved, That the Bill be further Report.—(Baroness Blatch.)
On Question, Motion agreed to.
Clause 15 [Introduction]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 46:
Page 9, line 32, after ("officers") insert ("or officers of another investigating agency").
The noble Lord said: My Lords, in moving Amendment No. 46 I shall speak also to Amendments Nos. 80 and 81. These are the first amendments on Report which deal with Part II of the Bill, which relates to criminal investigations, and in particular with the code of practice. Part II of the Bill consists, in effect, of a summary of the most important issues raised in the code of practice.
Those who were present on 19th December will know that there were differences between the Minister and myself on how best to approach these matters. I hasten to say that those differences were political and procedural rather than personal. I am very glad to say that as a result of discussions which took place on that day the Minister has sent to me and to other noble Lords who have expressed an interest in these matters a full and helpful letter—perhaps it is best described as a discussion paper—in which she addresses the issues

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raised in our Committee stage amendments to the code of practice, including those which in the end were not moved.
The Minister's letter was accompanied by a version of the code of practice which incorporated our amendments in order to see what the effect of those amendments should be. She followed up the letter by readily agreeing to a most helpful meeting, at which we were able to discuss all the issues raised by the code of practice and also other issues. I want to begin my remarks this afternoon by paying tribute to the noble Baroness for the co-operation that she has shown in ensuring that our debates on the code of practice are as helpful as possible.
It is important that those debates should be as helpful and as full as is necessary because, as the Minister made clear before Christmas, the code of practice is still in the process of finalisation. It is still out to consultation and views are still coming in. The debates ought to make, and I hope will make, a substantial contribution to the consultation process. Although they do not arise in consideration of the present amendments, your Lordships will have noted that Amendments Nos. 74 to 77 and 119, some of which are in my name and some in the Minister's name, address the issues both of formal consultation on the code of practice and of parliamentary approval of the code of practice which we urged at the Committee stage.
Again, without anticipating in detail the debate which will take place on that amendment, I am glad to say that the outcome of those discussions and the further consideration by the Minister and her officials has been that the Government have agreed with the Select Committee on Delegated Legislation that the code of practice, which is such an important part of this Bill, shall be subject to formal consultation and to approval by Parliament in due course. Therefore, I believe that that issue, which might have divided us, will no longer divide us. The views that we expressed at an earlier stage have been not merely taken into account but accepted by the Government at this stage.
I hope that that fact will colour the way in which we debate specific issues relating to the code of practice. That is the spirit in which I want to address the issues. We may still disagree about particular aspects of them. It may be that the Government will find it possible to agree to some of the suggestions that we made in amendments tabled in Committee and in amendments tabled again today. It is certainly true that, following correspondence and talks, we have found it possible to amend some of our own Committee stage amendments in order to recognise the justice of the points that the Government have made and to remove some of the anomalies which they pointed out as regards the amendments. Of course, we should have preferred the Bill to have been produced for Second Reading in its final form rather than subject to so many amendments. Of course, we should have preferred the code of practice to have been available at the outset rather than only a few days before the Committee stage. However, I
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recognise that the Minister and her officials have done the best they can in the intervening period to remedy those initial defects.
Amendments Nos. 46, 80 and 81 are concerned with the issue as regards to whom the code of practice applies. Amendment No. 46 was moved and debated at Committee stage and, if I may say so, we had some rather extraordinary replies from the Minister. In part she was entirely justified in drawing attention to the defect of an amendment in Clause 15 in that it did not refer to Clause 19 which provides that people other than the police shall have regard to the code of practice. I offered my apologies straightaway to the Minister for not recognising that point fully in the way in which the amendments were drafted. I hope that by adding Amendments Nos. 80 and 81 we have overcome that difficulty and can return to address the substantive issue.
Amendment No. 46 provides that the code of practice shall apply to all investigative authorities. That is reinforced—perhaps it is an alternative formulation—by Amendments Nos. 80 and 81 to Clause 19 which provide that the other investigative agencies shall not only have regard to the code of practice, as in the Bill as drafted, but shall comply with the code of practice. It seems to us essential that if a code of practice is to be complete, it shall include the ability of the police to delegate parts of their investigation to other people, and to recognise that in many investigations other people such as the local authority officials, Customs and Excise, or private investigators may have a responsibility for some parts of the investigation. If the code of practice is to be fully effective, it must cover them too. That is what we seek to achieve in the amendment.
In response to an amendment in Committee, the Minister correctly described the effect of Amendment No. 46. However, she said that it could not be done because the Bill is being put forward by the Home Secretary who was responsible for preparing the code; and that many of the people in other investigatory agencies—Customs and Excise, or trading standards officers—are under the command of other Secretaries of State.
In replying, I made the point—I repeat it—that legislation does not need to take account of such differences. Legislation is prepared by "the Secretary of State"; and that is deliberate. The titles and responsibilities of Secretaries of State may change. Legislation is put forward by government rather than on behalf of a particular Secretary of State although each Bill is presented by a specific department.
I return to the point because I did not receive a satisfactory answer from the Minister. If it is true that in order to have a satisfactory code of practice in the conduct of criminal investigations we must include in that code agencies which are not the responsibility of the Home Secretary, then other Secretaries of State will have to be involved in preparing and enforcing the code. The conduct of government requires that that should happen. Indeed, legislation constantly and regularly provides for that. It is not necessary to say in legislation on every single occasion that, for example, on producing

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an environmental measure the Secretary of State for the Environment has to be backed by the Secretary of State for Wales in so far as that legislation covers Wales. To a lesser extent, the same is true for Scotland where the system of law is different and legislation often has to be framed differently. However, the principle that government are seeing to the effectiveness of legislation rather than a specific department is well known and well understood. Denial of that principle ought not to be used as an argument against amendments of this kind.
I put it to the Howe, as I put it to the Committee, that if the codes of practice are to be effective, and if they are to cover, as I believe they should, all those involved in criminal investigations, then it is necessary for the codes to cover other investigative authorities and for them to be required not to have regard to but actually to comply with them. On that basis, apologising for the length of the introduction, I beg to move Amendment No. 46.
3.15 p.m.
Lord Campbell of Alloway: My Lords, I should like to associate myself with the observations of the noble Lord, Lord McIntosh of Haringey, having been the cause of part of the trouble starting at Second Reading. I am very relieved that the matter should have been resolved in this amicable way. I thank my noble friend the Minister.
I find it difficult to understand why these amendments are grouped. I wish to agree unreservedly with Amendment No. 80. However, I am under some difficulty with Amendments Nos. 46 and 81 because surely they are too wide. I agree that we must cover all prosecuting authorities including, for example, the Customs and Excise, but surely not local authorities. I seek the assistance of my noble friend the Minister on this. Is it really the intendment that this provision should go so wide; and, if so, would it not be somewhat impracticable?
Lord Williams of Mostyn: My Lords, I support the amendment. One normally thinks of investigations as being substantially conducted by police officers. However, there are many other investigating authorities which now have extraordinary powers, many of which are not known to the ordinary citizen. One thinks of departments relating to trade descriptions, VAT, Inland Revenue, and food and drink, all of which are capable of bringing criminal charges. It seems strange that an obligation should be less on those investigating authorities than on the police. For instance, what is to happen if the latest trailed provisions of the present Home Secretary about the involvement of the security services come into effect? Are they not to be subject to the code of procedure which will bind police officers investigating quite often the same class of offence—serious drugs offences, wide-scale fraud, or racketeering, if one may put it generally?
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As regards the point of the noble Lord, Lord Campbell of Alloway, the wording may be too wide. However, an important point of substance underlies the amendment.
Baroness Blatch: My Lords, I, of course, understand all the concerns about the amendment, but, as I shall explain, in our view the existing provisions in the Bill are sufficient to achieve what I think we all want to achieve.
Amendment No. 46 widens the definition in Clause 15 of a criminal investigation to include investigations conducted by officers of another investigating agency as well as by police officers. Because Clause 16 refers to criminal investigations, the amendment ensures that the code of practice prepared under Clause 16 is a code for all investigators as well as for the police. That means officers of Her Majesty's Customs and Excise, Serious Fraud Office inspectors, local authority trading standards officers and many others.
I explained in the earlier debate why we did not think it possible to have one code whose provisions would apply to every investigating agency. The operational practices of such agencies are different from those of the police, and they need the flexibility to adapt the provisions of the code to their own particular circumstances. Moreover, some of them, such as the Health and Safety Executive, both investigate and prosecute. Where the investigator is also the prosecutor, it would not be sensible for the code of practice to require a person to reveal material to himself and certify to himself that he has done so.
It seems to us that the correct approach is to require other investigators to have regard to the relevant provisions of the code of practice. This is the course taken in Clause 19(1). Amendment No. 80 to Clause 19 would replace the requirement to have regard to the relevant provisions with a requirement to comply with them.
The current wording of Clause 19(1) is based on the precedent in Section 67 of the Police and Criminal Evidence Act 1984. Section 67 requires persons other than police officers who are charged with the duty of investigating offences to have regard to the relevant provisions of the codes of practice issued under PACE to which the police are subject. Subsequent case law has established that the effect of Section 67 is to apply the relevant provisions of the PACE codes of practice to such diverse groups as officers of Customs and Excise, officers of the Serious Fraud Office, store detectives and commercial investigators in so far as they are charged with the duty of investigating offences, and investigators operating with a warrant under the Copyright, Designs and Patents Act 1988. So the requirement to have regard to the provisions of the code of practice under our Bill is a real and not a theoretical obligation.
We would be reluctant to amend Clause 19(1) as in this amendment, for two reasons. First, the current wording already achieves what I think the noble Lord wants it to achieve. Secondly, requiring investigators to comply with the provisions of the code means that they must follow them to the letter. There is no flexibility to adapt the relevant provisions to their own particular

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circumstances. As I have explained, that is one of the difficulties with extending the definition of a criminal investigation as in Amendment No. 46 to Clause 15.
Finally, Amendment No. 81 to Clause 19 provides that the duties in Clause 19(1)—including those imposed by Amendment No. 80 to Clause 19—extend also to a person other than a police officer who is instructed to conduct an examination or investigation with a view to ascertaining whether a person should be charged with an offence, or whether a person who has been charged with an offence is guilty of it.
The noble Lord, Lord McIntosh, has explained that this is designed to ensure that persons such as forensic scientists are under the same obligations as police officers or others who instruct them. The effect of the amendments is that such persons would be required to comply with the relevant provisions of the code of practice.
This amounts to treating a forensic scientist or similar person as if he was a police officer. But a forensic scientist is not like a police officer and could not properly comply with these duties. He is an expert witness who is asked for an opinion on a particular item of material. He receives only a restricted and selected number of items submitted to him by the investigating officer, and does not see all the other material in the possession of the prosecutor or investigator. Under this amendment he would be required to retain material obtained in the course of a criminal investigation if it might be relevant to the investigation—but he will not know whether it is relevant or not. Furthermore, in most cases the only contact the forensic scientist has will be with the police or other investigator, and he would not be able to reveal material to the prosecutor as the code of practice requires.
It seems to us that the better course is not to treat forensic scientists and others as if they were charged with the duty of investigating offences, but to impose duties on those who are investigators and who are able to comply with the provisions of the Bill and the code of practice. It is not necessary to subject forensic scientists to detailed requirements relating to disclosure, because the police will be required under these provisions to ensure that the prosecutor has access to all the material he needs to form a view on whether material should be disclosed to the accused. The police officer will retain reports of work by expert witnesses, and, if necessary, the material which is the basis of the report will be available for inspection.
As I have said, I think these amendments are unnecessary for the reasons I have given, and I hope the noble Lord will not press them.
The noble Lord, Lord McIntosh, was quite right to chide me about my reply to him on the numbers of Secretaries of State. The Bill would accordingly not need to specify a requirement on different Secretaries of State to produce different codes of practice. But, as I have explained, it is the case that if the definition of a criminal investigation were widened to include the officers of all investigating agencies, all of them would be bound by the exact terms of the code of practice
16
prepared under Part II. For the reasons I have given, that would not be possible. Because their operating practices are different and there are so many different investigating agencies, it would be necessary to make a large number of different codes of practice, rather than them being subject to large numbers of different Secretaries of State—albeit under the one Secretary of State—setting out exactly the different requirements each of them must meet. I do not believe that that is sensible. It seems to me to be much more sensible to adopt the approach taken with the PACE codes of practice, whereby other investigators must have regard to the code.
Lord Simon of Glaisdale: My Lords, before the noble Baroness sits down, is not the phrase "have regard to" extremely uncertain? Would her point be met by stipulating that the other agencies should "comply so far as practicable" with the code of practice?
Baroness Blatch: My Lords, as the noble and learned Lord will see, Clause 19 states that:
"A person other than a police officer who is charged with the duty of conducting an investigation with a view to it being ascertained—",
then it goes through the responsibilities of other investigators, as well as those of a police officer. Clause 19(4) states:
"If it appears to a court or tribunal conducting criminal or civil proceedings that…any provision of a code in operation at any time by virtue of an order under section 18, or…any failure mentioned in subsection (2)(a) or (b), is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question".
That means that having regard to the relevant aspects of the code is very much a binding provision.
Lord McIntosh of Haringey: My Lords, I am relieved at one part of the Minister's answer. If it had not been the case that the legislation was put forward by one Secretary of State, then much of my claimed understanding of legislation, when I have opposed it over the past 12 or 13 years, would have been in error. Therefore, to some extent we have made progress.
In my over-long introductory speech, I did not repeat the argument (because I hoped that it would not be necessary) about the difference between "have regard to" and "comply with". The noble and learned Lord, Lord Simon, has properly drawn attention to the weakness of the words "have regard to". I am not reassured by the Minister's comment that it is what happens with the police and the codes of practice under the Police and Criminal Evidence Act. The fact that criminal investigations are carried on by so many agencies does not absolve the Government from the responsibility of ensuring that in effect there are codes of practice which apply to all those taking part in criminal investigations. I suggest that unless the code of practice is comprehensive in that way, the opportunity for challenge to verdicts on the grounds that the code has not been complied with—and I mean "complied with" and not "had regard to"—at an earlier stage in the investigation is that much greater.

17
A challenge, trial and conviction based on evidence collected by those who are not necessarily bound by the code of practice make nonsense of the whole of Part II of the Bill. Since Part I of the Bill in turn depends on the definition of matter not already disclosed under the code of practice, it makes nonsense of the disclosure provisions in the Bill.
The only argument left to the Government is that given in the Minister's rather self-contradictory reply; namely, that it would be too difficult to frame a code of practice that covered different investigative agencies. Of course it would be more difficult; of course it is easier to have a code of practice covering only the police. But that means that the Government are sacrificing completeness and justice for the sake of administrative convenience. That cannot be satisfactory.
Perhaps I may return to the example given by my noble friend Lord Williams of Mostyn about the security services. One of the arguments we shall have when the Security Service Bill reaches this House will relate to the extent to which the security services are covered by the codes of practice and the laws that regulate police work. This is a fairly non-party matter. Many in another place argue that if the security services are carrying out functions that would otherwise be carried out by the police, they must be bound by the same codes of practice as the police. They cannot be independent and unquestioned, as they are in matters of national security. The same applies to all aspects of criminal investigation.
If the Government have to redraft the code of practice to cover other agencies, then so be it. The position at the moment is that the Government have decided to take the simple way out in the drafting and coverage of the code of practice. That is simply not good enough.
I have used this analogy before, and therefore apologise to those who have heard it. The Government's approach is rather similar to that of the drunk who loses his keys. He is found looking for the keys under the nearest lamp-post. Somebody asks him, "Did you lose your keys here?". He says, "No, I didn't, but the light's better here". The Minister is in fact saying that the light is better only for police investigations, and therefore the Government will not look for a proper code of practice where it is darker but may be more appropriate. I gladly give way to the Minister.
3.30 p.m.
Baroness Blatch: My Lords, I am most grateful to the noble Lord. With the leave of the House I shall address two points which I did not address in the course of my response. The first is the reference made by the noble Lord, Lord Williams of Mostyn, to the security services, mentioned again by the noble Lord, Lord McIntosh.
The new functions given to them by the Bill passing through the other place will mean that the security services will not act in their own right but in support of the police. That has been made very clear during the course of the Bill's passage. They will not be self-tasking. That is the important point. That is certainly how the police see it. The police will have the duty to conduct the investigation.
18
The second point, which I did not cover fully, is that subsequent case law has established that the effect of Section 67 is to apply to the relevant provisions in the PACE code for other diverse groups such as Customs and Excise, serious fraud officers, store detectives and commercial investigators. It has been proved through the working of that Act that "having regard to" the code is a very proper part; it can be taken into account if they do not have regard to the code.
Lord McIntosh of Haringey: My Lords, both those additional points seem helpful to my argument. I am very glad to hear the point about the security services. However, it follows that what is good enough for the security services is good enough for others who collaborate with the police or undertake criminal investigations on their own. Incidentally, I see no difficulty in regard to those agencies that are responsible both for investigation and prosecution. There should be no difficulty at all—other than its simply being a little laborious—why the code should not be adapted for them to recognise the fact and to streamline, as it were, the process of revealing information to themselves.
I turn to the other question raised by the Minister on subsequent case law to the Police and Criminal Evidence Act 1984. That strengthens my case. Knowing the need, recognised by the courts, for a wider applicability of the codes of practice under PACE, we cannot seriously allow ourselves to pass legislation now which would have to be interpreted by the courts in the same way as the Police and Criminal Evidence Act has had to be interpreted. Surely, once it has been recognised that "have regard to" is not good enough and there needs to be subsequent case law to establish what the relationship is, the right alternative is to do it now.
On that basis, I suggest that this proposal is not only a correct extension of the code of practice but is the minimum extension that provides that the code of practice, which is not on the face of the Bill, shall provide the necessary reform for the avoidance of miscarriages of justice—the basis on which this legislation in the first instance and the report of the Royal Commission were framed. I wish to seek the opinion of the House.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 106.

Division No. 1

CONTENTS

Acton, L

Craig of Radley, L.

Addington, L.

Darcy (de Knayth), B.

Allen of Abbeydale, L.

David, B.

Annan, L.

Donaldson of Kingsbridge, L.

Archer of Sandwell, L.

Donoughue, L.

Avebury, L.

Dormand of Easington, L.

Barnett, L.

Ezra, L.

Borrie, L.

Falkland, V.

Bruce of Donington, L.

Farrington of Ribbleton, B.

Carter, L.

Fisher of Rednal, B.

Castle of Blackburn, B.

Gladwin of Clee, L. [Teller.]

Chapple, L

Graham of Edmonton, L. [Teller.]

Clinton-Davis, L.

Gregson, L.

19

Grey, E

Prys-Davies, L.

Halsbury, E.

Rea, L.

Hamwee, B.

Redesdale, L.

Haskel, L.

Richard, L.

Henderson of Brompton, L.

Richardson, L.

Hilton of Eggardon, B.

Robson of Kiddington, B.

Hollis of Heigham, B.

Rodgers of Quarry Bank, L.

Jenkins of Hillhead, L.

Sainsbury, L.

Jenkins of Putney, L.

Shaughnessy, L.

Kennet, L.

Shepherd, L.

Kinloss, Ly.

Simon, V.

Lincoln, Bp.

Simon of Glaisdale, L.

Longford, E.

Stallard, L.

McCarthy, L.

Stedman, B.

McIntosh of Haringey, L.

Stoddart of Swindon, L.

McNair, L.

Strabolgi, L.

Mallalieu, B.

Taylor of Gryfe, L.

Marsh, L.

Thomson of Monifieth, L.

Masham of Ilton, B.

Tordoff, L.

Mason of Barnsley, L.

Turner of Camden, B.

Methuen, L.

Wallace of Saltaire, L.

Milner of Leeds, L.

Warnock, B.

Molloy, L.

Wedderbum of Charlton, L.

Nicol, B.

White, B.

Palmer, L.

Wigoder, L.

Peston, L.

Williams of Elvel, L.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Hailsham of Saint Marylebone, L.

Addison, V.

Harding of Petherton, L.

Ailsa, M.

Hayhoe, L

Aldington, L.

Henley, L.

Alexander of Tunis, E.

HolmPatrick, L.

Archer of Weston-Super-Mare, L.

Hooper, B.

Arran, E.

Inglewood, L.

Astor of Hever, L.

Johnston of Rockport, L.

Belhaven and Stenton, L.

Kimball, L.

Blaker, L.

Lane of Horsell, L.

Blatch, B.

Lauderdale, E.

Blyth, L.

Liverpool, E.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lucas, L.

Braine of Wheatley, L.

Lyell, L.

Brentford, V.

McConnell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Butterworth, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Cadman, L.

Campbell of Alloway, L.

Macleod of Borve, B.

Campbell of Croy, L.

Manton, L.

Chelmsford, V.

Merrivale, L.

Chesham, L. [Teller.]

Mersey, V.

Clanwilliam, E.

Middleton, L.

Cockfield, L.

Miller of Hendon, B.

Constantine of Stanmore, L.

Milverton, L.

Courtown, E.

Monteagle of Brandon, L.

Cranborne, V. [Lord Privy Seal.]

Mottistone, L

Cumberlege, B.

Mowbray and Stourton, L.

Dean of Harptree, L.

Murton of Lindisfarne, L.

Denham, L.

Norrie, L.

Denton of Wakefield, B.

Northesk, E.

Dilhorne, V.

O'Cathain, B.

Elibank, L.

Orkney, E.

Ellenborough, L.

Oxfuird, V.

Elles, B.

Peel, E.

Elliott of Morpeth, L.

Pender, L.

Ferrers, E.

Peyton of Yeovil, L.

Fraser of Carmyllie, L

Pym, L.

Fraser of Kilmorack, L.

Rankeillour, L.

Gage, V.

Reay, L.

Gainford, L.

Rennell, L.

Gardner of Parkes, B.

Renwick, L.

Gilmour of Craigmillar, L.

St. Davids, V.

Goschen, V.

Seccombe, B.

Gray of Contin, L.

Shaw of Northstead, L.

20

Shrewsbury, E.

Swinton, E.

Skelmersdale, L.

Teviot, L.

Slim, V.

Teynham, L

Strathcarron, L.

Thomas of Gwydir, L.

Strathclyde, L. [Teller.]

Trumpington, B.

Sudeley, L.

Vivian, L.

Swinfen, L.

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.45 p.m.
Clause 16 [Code of practice]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 47:
Page 10, line 2, leave out ("designed").
The noble Lord said: My Lords, we debated this amendment also in Committee. However, we tabled it again because we did not think that the answers were at all satisfactory. The amendment provides not just that the code of practice "shall" secure the various provisions—the phrasing is:
"The Secretary of State shall prepare a code of practice containing provisions designed to secure",
various objectives and results.
We take the view that that is simply not good enough. The word "designed", which provides that the intent is satisfactory even if the result is not satisfactory, is not simply unnecessary but positively dangerous. Even with all the precautions that are now being taken and even allowing for the probability of parliamentary approval, the code of practice has to be justified in itself; it has to provide that the objectives of the legislation are in fact carried out.
As the code of practice and the provisions for the code of practice in the Bill at present stand, they are rather curious. Clause 15 looks at the definitions used in the code of practice and in the definition of a criminal investigation. Clause 16 provides certain elements of a code of practice which the Government consider to be so important that they ought to be spelt out in the Bill, although, for reasons that we shall discuss later, some of them are only spelt out in terms of "may" include rather than "shall" include.
Clause 17 is even more peculiar. It states:
"This section gives examples of the kinds of provision that may be included in the code".
I do not believe that I have ever before seen quite that degree of vagueness in legislation. It always used to be argued by lawyers with whom I found myself debating these matters that if one includes one example, another example is excluded. There must be some Latin words for that which the noble and learned Lord, Lord Hailsham, will give us in a minute if he is tempted any further. He tells me that it is expressio unius est exclusio alterius.
Here is a whole clause of a Bill which simply gives examples of things that may be included. If I were a Minister and the Opposition proposed a clause of that kind, I should be inclined to say, "It is entirely unnecessary. We can do what we like and there is

21
nothing to stop us, whether or not it is included in the legislation". But that is another matter and one which perhaps we can deal with in more detail when we discuss Clause 17.
At the present time, we are dealing with Clause 16. Clause 16(1) provides specifically for some core elements in the code of practice. But that provision and the firmness of it is ruined by the inclusion of the word "designed". It is not just that it makes it possible for a code of practice to he drawn up which, although designed to produce such results, does not in fact do so. It means that there is not any objective criterion afterwards to judge whether the code of practice complied with the constraints laid down by Parliament in the legislation. All that the Secretary of State has to say is, "Well, okay, we accept that it does not do what Parliament said it should do, but it was designed to do it and so that is perfectly all right; and any criticism of the code of practice on the basis that it frustrates the will of Parliament has no basis in law". That can he dealt with extremely simply by taking out the one word "designed". I beg to move.
Lord Campbell of Alloway: My Lords, the Secretary of State is under a mandatory duty to prepare the code of practice. This code of practice has legal efficacy. Using the word "designed" if we do not deliver, merely weakens the prospect of enforcement and mitigates the efficacy of the code.
Baroness Blatch: My Lords, during Committee I gave an undertaking to look again at the substance of this amendment. Having heard the noble Lord again today, I believe that this is one of those cases where we must agree to differ.
Paragraphs (a) to (f) of Clause 16(1) set out the objectives of the code. The Secretary of State is required to prepare a code which contains provisions designed to secure those objectives. That leaves some flexibility as to how the objectives are achieved. Clause 16(1) is intended to specify not what provision must be in the code, but what the end results of that provision should he. In that way, the provisions are designed to secure certain things; but it is the investigator, acting in accordance with the provisions in the code, who will actually secure them. It is the investigator who must secure those ends.
It seems more natural to say that a code of practice contains provisions which are "designed" to secure certain things than that the provisions actually do secure them.
Lord McIntosh of Haringey: My Lords, that argument is as awful this time as it was last time. The objectives of the code of practice and their ability to meet the wishes of Parliament are the responsibility of the Secretary of State. As the Minister said, it is the responsibility of the investigator to carry out the will of Parliament in accordance with the code of practice. But ultimately—I am sure the Minister will agree that this is the case everywhere else—the responsibility for matters which Parliament has determined lies with the Secretary
22
of State and cannot be shuffled off onto the investigator or anybody else. I did not mean to take the opinion of the House on this matter, but I shall.
3.53 p.m.
On Question, Whether the said amendment (No. 47) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 107.

Division No. 2

CONTENTS

Acton, L

McCarthy, L.

Addington, L.

McIntosh of Haringey, L.

Allen of Abbeydale, L.

McNair, L.

Archer of Sandwell,

Mallalieu, B.L.

Avebury, L.

Mason of Barnsley, L.

Bancroft, L.

Merlyn-Rees, L.

Barnett, L.

Methuen, L.

Beaumont of Whitley, L.

Milner of Leeds, L.

Borrie, L.

Molloy, L.

Bruce of Donington, L.

Nicol, B.

Carter, L.

Palmer, L.

Castle of Blackburn, B.

Prys-Davies, L.

Clinton-Davis, L.

Rea, L.

David, B.

Redesdale, L.

Dean of Thornton-le-Fylde, B.

Richard, L.

Donaldson of Kingsbridge, L.

Robson of Kiddington, B.

Donoughue, L.

Rodgers of Quarry Bank, L.

Dormand of Easington, L.

Sainsbury, L.

Farrington of Ribbleton, B.

Shaughnessy, L.

Fisher of Rednal, B.

Shepherd, L.

Geraint, L.

Simon, V.

Gladwin of Clee, L. [Teller.]

Stallard, L.

Graham of Edmonton, L. [Teller.]

Stedman, B.

Gregson L.

Strabolgi, L.

Grey, E.

Taylor of Gryfe, L.

Hamwee, B.

Thomson of Monifieth, L.

Haskel, L

Tordoff, L.

Hilton of Eggardon, B.

Turner of Camden, B.

Hollis of Heigham, B.

Warnock, B.

Howell, L

Wedderbum of Chariton, L.

Jenkins of Hilihead, L.

White, B.

Jenkins of Putney, L.

Wigoder, L.

Kennet, L.

Williams of Elvel, L.

Longford, E.

Williams of Mostyn, L

NOT-CONTENTS

Aberdare, L.

Chesham, L [Teller.]

Addison, V.

Clanwilliam, E.

Ailsa, M.

Cockfield, L.

Aldington, L.

Courtown, E.

Alexander of Tunis, E.

Cranborne, V. [Lord Privy Seal.]

Arran, E

Cumberlege, B.

Astor of Hever, L.

De Freyne, L.

Belhaven and Stenton, L

Dean of Harptree, L.

Blaker, L.

Denham, L.

Blatch, B.

Denton of Wakefield, B.

Blyth, L.

Dilhorne, V.

Boyd-Carpenter, L.

Elibank, L

Brabazon of Tara, L.

Ellenborough, L.

Braine of Wheatley, L.

Elles, B.

Brentford, V.

Elliott of Morpeth, L.

Brougham and Vaux, L.

Faithfull, B.

Butterworth, L.

Ferrers, E.

Cadman, L.

Fraser of Carmyllie, L.

Campbell of Alloway, L.

Fraser of Kilmorack, L.

Campbell of Croy, L.

Gage, V.

Cannock, L.

Gainford, L.

Chelmsford, V.

Gilmour of Craigmillar, L.

23

Goschen, V.

Mowbray and Stourton, L.

Gray of Contin, L

Murton of Lindisfarne, L.

Hailsham of Saint Marylebone, L.

Northesk, E.

Harding of Petherton, L.

O'Cathain, B.

Hayhoe, L.

Orkney, E.

Henley, L.

Oxfuird, V.

HolmPatrick, L.

Peel, E.

Hooper, B.

Pender, L.

Hylton-Foster, B.

Peyton of Yeovil, L.

Inglewood, L.

Pym, L.

Jellicoe, E.

Rankeillour, L.

Jenkin of Roding, L.

Reay, L.

Johnston of Rockport, L.

Rennell, L.

Kimball, L.

Renwick, L.

Lane of Horsell, L.

Richardson, L.

Lauderdale, E

St. Davids, V.

Lloyd-George of Dwyfor, E Lucas, L

Seccombe, B.

Lucas L

Shaw of Northstead, L.

Lucas of Chilworth, L.

Shrewsbury, E.

Lyell, L.

Simon of Glaisdale, L.

Mackay of Ardbrecknish, L

Skelmersdale, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Strathcarron, L.

Strathclyde, L. [Teller.]

Macleod of Borve, B.

Sudeley, L.

Manton, L.

Swinfen, L.

Merrivale, L.

Swinton, E.

Mersey, V.

Teviot, L.

Middleton, L.

Thomas of Gwydir, L.

Miller of Hendon, B.

Trumpington, B.

Milverton, L.

Vivian, L.

Monteagle of Brandon, L.

Wynford, L.

Mottistone, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.1 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, in calling Amendment No. 48, I should point out that, if it is agreed to, I shall not be able to call Amendment No. 49.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 48:
Page 10, leave out lines 3 and 4 and insert—
("(a) that when information is obtained in the course of a criminal investigation it is recorded at the time it is obtained or as soon as practicable after that time;").
The noble Lord said: My Lords, my purpose in moving the amendment is to find out whether I cannot coax the Minister into seeing that there is some virtue in it. The message one derives loud and clear from the Royal Commission on Criminal Procedure is that the more order and regulation one has about the conduct of criminal investigations the better the conclusion is likely to be. This amendment is intended to ensure that, in respect of information obtained in the course of a criminal investigation, it is not simply recorded—that is on the face of the Bill in Clause 16(1)(a)—but that it is recorded, with the important qualification,
"at the time it is obtained"—
we know that there are sometimes difficulties in investigations
"or as soon as practicable after that time".
The proposal we put forward is that the structure often determines the conclusion, so that if one has an ordered regime it is capable of being a self-regulating mechanism, it forms a useful and necessary internal
24
check, it is likely to assist police officers and it is likely to assist the scrutiny of criminal investigations. This is simply an echo of what is presently required from the custody officer who has to make the record of custody, requests for solicitors and the usual requests at the time. I cannot see any disadvantage to this proposal. I strongly suggest that it is likely to improve the quality of police investigations because it imposes the necessary internal discipline that material is recorded either at the time or as soon as practicable thereafter. I beg to move.
Lord Campbell of Alloway: My Lords, if Clause 16 is merely designed to ensure, surely there is nothing to prevent the detail of this amendment, which appears to have considerable merit, appearing in the code of practice.
Baroness Blatch: My Lords, we now come to a series of amendments which are concerned with the detailed content of the code of practice to be prepared under Part II of the Bill. I should like to preface my response to the amendments with some remarks about the status of the code of practice and its drafting.
The code was published in draft shortly before the Bill went into Committee. We received a number of comments on it, not least in the form of amendments tabled by noble Lords opposite. Some refinements to the draft code are needed, but its structure and general content so far have stood up well. As the House will be aware, I have tabled amendments to Clauses 18 and 53 to provide that the code of practice will be subject to statutory consultation and affirmative resolution of both Houses of Parliament before it is implemented in accordance with the recommendations of the Delegated Powers Scrutiny Committee. In the light of the detailed comments received and of the proceedings in your Lordships' House, we intend to produce a further draft when the Bill goes to another place so as to inform the debates on the Bill in that place.
The noble Lord has not made it clear to the House whether he intends to press the amendment in order to have it placed on the face of the Bill, which was the point made by my noble friend Lord Campbell of Alloway. The last time these amendments were debated I recall that they were tabled not with the intention of placing them on the face of the Bill but of using the occasion to discuss them as possible changes to the code of practice. I am happy to set out the Government's interim views on the points, which will of course be subject to further consultation. I have already written to the noble Lord, Lord McIntosh of Haringey, with detailed comments on his amendments, and I shall draw on these in responding to this and other amendments in the series.
Amendment No. 48 to Clause 16 requires information to be recorded at the time it is obtained or as soon as practicable afterwards. We agree with the principle that information should be recorded promptly as long as it is considered to be relevant to the investigation. But we are concerned that this amendment might imply that an investigator has a duty to take a statement whenever he contacts a potential witness. He should not have to take statements when they would not ordinarily be taken,

25
although he should make a note of any potential witnesses. Subject to this caveat, we intend to incorporate into the draft code a modified version of Amendment No. 48 and I am grateful to the noble Lord for raising the point. That would require the prompt recording of material, without prejudice to the existing practice relating to whether statements should be taken or not.
Perhaps I may give an example of such an occasion. At riots where large numbers of people are present many people will be approached but statements will be taken only from a restricted number of people. Therefore, as long as all the events are recorded, only the relevant statements will be produced. I hope the noble Lord is satisfied that we will bring forward a modification of his amendment.
Lord Williams of Mostyn: My Lords, I am most obliged for that helpful response. The amendment was not designed to insist that statements should be obtained on every occasion but that information should be recorded. The Minister has said that there is nothing between us in the thrust of what we aim to secure. Upon that basis, for which I am most grateful, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, in calling Amendment No. 49, I should point out that if it is agreed to I shall not be able to call Amendments Nos. 50 or 51 because of pre-emption.
Baroness Blatch Baroness Blatch moved Amendment No. 49:
Page 10, line 3, leave out from ("information") to end of line 7 and insert ("which is obtained in the course of a criminal investigation and may be relevant to the investigation is recorded;

(b) that any record of such information is retained;

(bb) that any other material which is obtained in the course of a criminal investigation and may be relevant to the investigation is retained;

(c) that information falling within paragraph (a) and material falling within paragraph (bb) is").

The noble Baroness said: My Lords, perhaps I may speak at the same time to Amendments Nos. 52 and 56. These amendments ensure that the enabling provisions of Clause 16 are consistent with the provisions of the draft code of practice. Under Clause 16 as currently drafted, the code of practice would have to require the retention of all material obtained during a criminal investigation regardless of its relevance to the investigation. On reflection, we have concluded that that would be unworkable. For example, if the police seized a dustbin, searched it and found drugs, they would need to retain the entire contents of the dustbin as well as the drugs. Amendment No. 49 accordingly limits the retention requirement to material which may be relevant to the investigation. Although narrower, this should still catch all material which the prosecutor needs to see to form a view on whether material needs to be disclosed. It also accords with current police practice.
Amendment No. 52 ensures that the police can give material to the accused at the request of the prosecutor either by copying it to him or by allowing him to inspect
26
it. At present Clause 16 only provides for inspection, with copying subsequently if appropriate, but I understand that generally, unless the material is, for example, a very long document, it will he more efficient simply to copy it to the accused without requiring him or his legal representative to turn up at a police station to inspect it
Amendment No. 56 ensures that some of the tasks which must be carried out in pursuance of the code of practice can be carried out either by police officers or by civilians employed in the police force, although a police officer will always be ultimately responsible for ensuring that these tasks are carried out.
Under Clause 16 at present, all tasks, even administrative ones, must be carried out by police officers. That does not take account of the modern practice of employing civilians within the police service on tasks which do not need the specialist skills of a police officer. I beg to move.
Lord McIntosh of Haringey: My Lords, these are very welcome amendments not only in themselves, but in the way in which the Minister introduced them and the way in which they have been linked. Strictly speaking, they are all on very different subjects and, under some circumstances, I believe that we would have wished to debate them separately. After all, one is about the retention of irrelevant material; another concerns the way in which material can be disclosed to the accused and the third refers to the implementation of the code of practice by civilians as well as police officers. One could not have more different subjects for those three amendments, but they are linked for a very welcome reason. They are linked because the Government are recognising the force of the arguments we put forward at Committee stage that the important elements of the code of practice ought to be subject to legislative authority. That indeed is what the Government are now doing. They are recognising that the will of Parliament extends not only to the establishment of a code of practice itself, but also to significant elements of the code of practice. So in putting forward these amendments which, as the Minister rightly said, bring the Bill into line with the code of practice, as at present drafted, she is in effect conceding that our arguments for debating these issues on the Floor of the House have been correct, and for that I am grateful.
The Deputy Speaker pointed out that Amendments Nos. 50 and 51 will be pre-empted if Amendment No. 49 is carried, as I believe it will. I hope that the House will forgive me if I make some reference to those two amendments. I do not know whether the Minister has simply assumed that Amendment No. 49 would be carried and that she did not need to refer to Amendments Nos. 50 and 51. I hope she may feel able to respond to my points about those two amendments which I shall be unable to move.
In both cases we have taken account of points made by the Government. We have made changes to the amendments that we tabled at Committee stage. I hope that the Minister will acknowledge that these amendments are sensible and that it would be entirely

27
proper for them not to be pressed here—they cannot be—but for them to be incorporated in the next version of the code.
The first issue concerns material which at present is to be kept in durable form. In the amendment we are saying that where possible it should be kept in the original form as well. The Minister rightly said to me in a letter that our original amendments put an impossible task on the investigator requiring him to keep in the original form material which was not necessarily in his possession, but in that of a third party. The Minister acknowledges, and I acknowledge, that the issue of evidence in the possession of third parties is extremely complicated. I accept her point that although she is trying to table amendments to the Bill which recognise these points, the Minister has been unable to do so yet and that it will be necessary to do that at a later stage and possibly not even in this House. Now that we have added the words, "obtained by the investigator" in Amendment No. 50—in other words, we have limited the scope of our Amendment No. 69 tabled at Committee stage—I hope that the Minister will agree that there is something of substance here which deserves to be considered further.
Amendment No. 51 is extremely important because it is about samples and particularly forensic evidence. I believe that the Minister will be able to agree to the thrust of some part of this amendment. My understanding is that the present rule is that non-perishable material, such as a boot, is returned to the police by the forensic scientist, but that perishable material is subject to a notice under rules which have been drawn up by the Crown Prosecution Service and by the Lord Chief Justice; namely, notification of intent to destroy a piece of evidence. All this sounds entirely satisfactory to me, but it is important that there should be recognition in the code of practice that samples of this kind are, under appropriate and enforceable rules, kept under the control of the code of practice and included in its scope. We have no objection to Amendments Nos. 49, 52 and 56.
Lord Campbell of Alloway: My Lords, I support the suggestion that when the code of practice is drawn, serious consideration may be given to Amendments Nos. 50 and 51, which are very useful.
4.15 p.m.
Baroness Blatch: My Lords, with the leave of the House, I thought that it might be presumptuous of me to have jumped ahead. I am happy to respond to Amendments Nos. 50 and 51 before a decision is taken on my amendment.
I understand the concerns about the issue raised in Amendment No. 50. But again, the requirement—and this is the distinction—to retain material in a durable form and as far as practicable in its original form, is insufficiently flexible to take account of operational practice. Perhaps I may give an example. Where papers are obtained from a company, it makes sense for the police to take a copy and return the originals to the company so that it can continue its work. For that reason
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we prefer to retain the existing provision in the draft code, which recognises that material may be retained either in its original form or in the form of a copy, but nothing that would prejudice justice in these cases.
Amendment No. 51 requires the retention of both draft and final versions of witness statements. The code requires only final versions to be retained. We accept that draft versions of witness statements should in general be retained. Although special considerations apply to statements of opinion prepared by expert witnesses, these tend to evolve as further information comes to light and additional expert contributions are obtained. Earlier versions of such statements tend to be based on incomplete information and could be misleading. We see no advantage in their retention for their own sake. I have already given the noble Lord an undertaking that we shall amend the draft code to require the retention of draft witness statements subject to that qualification.
The second amendment seeks to specify the material which the expert must retain to support the report on any work carried out and the schedule of scientific material which are sent to the investigator. The code is not designed to regulate the activities of expert witnesses—we have had this debate already—but only of those persons who are charged with the duty of conducting an investigation. Again, we discussed this point when debating a previous amendment. What is important is that where there is a requirement to retain samples in a condition that will be appropriate, that responsibility lies with the investigator.
On Question, amendment agreed to.
[Amendments Nos. 50 and 51 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 52:
Page 10, line 12, leave out from first ("it,") to end of line 13 and insert ("and he requests that it be disclosed to the accused, the accused is allowed to inspect it or is given a copy of it;
(dd) that the person who is to allow the accused to inspect information or other material or to give him a copy of it shall decide which of those (inspecting or giving a copy) is appropriate;").
The noble Baroness said: My Lords, this amendment was taken with Amendment No. 49. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 53:
Page 10, line 20, at end insert—
("(1A) The code shall include provision that a police officer shall be identified for each criminal investigation who shall secure—

(a) that information obtained in the course of a criminal investigation is recorded;

(b) that any record of information so obtained, and any other material so obtained, is retained;

(c) that information obtained, and any other material so obtained, is disclosed to a person who is involved in the prosecution of criminal proceedings arising out of or relating to the investigation and who is identified in accordance with prescribed provisions;

(d) the person so identified shall sign a certificate that these provisions have been complied with.").

The, noble Lord said: My Lords, in moving Amendment No. 53, I should like to speak also to Amendments Nos. 55 and 57. The purpose of these amendments is similar to that of certain other amendments: to devise and institute a scheme which will designate a specific police officer in a criminal investigation who will have the duty of recording and, in particular, the obligation of signing a certificate to say that certain obligations have been discharged. It is not a new proposition. It was suggested in the past by the Bar Council before the commission of the noble Lord, Lord Runciman, was set up, and has been suggested also by the Criminal Bar Association. It is not suggested or necessary that in every criminal investigation the designated officer should be a senior officer. Obviously in the smaller run of the ordinary criminal case the officer involved in the case will be designated. More senior officers may be required in more complex cases and the duty may need to be delegated to a specific detective officer.
The amendments are designed to bring about the result that there will be someone with a duty set upon him or her, and that that duty will be identified and enforced by virtue of the obligation and the necessity that the designated officer shall sign the certificate to say that all has been properly complied with. If the Minister were of the view that that is something that could usefully be accepted in principle for inclusion in the code, I would be more than satisfied. I beg to move.
Lord Campbell of Alloway: My Lords, if the amendment cannot be accepted verbatim, I hope that my noble friend the Minister will give serious consideration to accepting it in principle.
Baroness Blatch: My Lords, I hope that I can be helpful. These amendments to Clause 16 provide that the code of practice must include provision for an identified police officer to secure the recording of information, the retention of records of information and other material and their disclosure to the prosecutor, and to certify that this has been done. I believe that the amendments are not necessary to achieve the desired result because Clause 16 already requires the Secretary of State to prepare a code of practice which is designed to secure compliance with the duties specified in the amendments.
Nevertheless, I understand the concern to ensure that the duties relating to disclosure which fall on the police are carried out by someone who is identified and who will certify that he has complied with his duties. As I have already indicated to the noble Lord in correspondence, I agree with this in principle. We will, as Clause 16 allows, ensure that in the next draft of the code of practice the duties of the "disclosure officer", as he will be called, are clearly identified. If a disclosure officer is to perform those revelatory functions, there is no need to record his name in a log book: it will appear on the schedule and on the certificate supplied to the prosecutor. I hope that noble Lords will be satisfied that that explanation is a positive response to the amendment.
Lord Williams of Mostyn: My Lords, it is indeed a positive response. I believe it to be a helpful response
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which will improve the working of the code and therefore the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 54:
Page 10, line 21, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, this is the first of a long series of amendments. The grouping also includes Amendments Nos. 59, 63, 64, 65, 68, 71 and 72, all of which have the same effect. They do not seek to write the provisions of the code of practice on the face of the Bill—we do not want to start that argument again—but they seek to do what the Bill already provides; in other words, they seek to change the provisions which state that "the code of practice may do so and so" to provisions stating, "the code of practice shall do so and so".
Taking into account Amendments Nos. 49, 52 and 56, I believe that the Government now recognise that the provisions in Clauses 16 and 17 which seek to constrain and to bring out into the open air, so to speak, the provisions of the code of practice are included in the code of practice, or will be.
I repeat the acknowledgement that my noble friend Lord Williams has just made. On occasions we are receiving helpful replies to our suggestions about the code of practice. I believe that that justifies the effort that we have put into examining the code of practice to ensure that it meets the requirements of justice and fits properly into the structure of the Bill.
If that is the case, what is the point of having Clauses 16 and 17 unless they provide that the code of practice includes what it does in fact include? It is difficult to check because the code of practice is formulated in a different way—in paragraphs rather than clauses—but as far as I can see, all of the provisions of Clauses 16 and 17 are reflected in the code of practice, so why not secure that parliamentary approval is given to those inclusions and that the code cannot be changed without further parliamentary approval? I believe that these are sensible provisions which increase Parliament's control over the code of practice without taking away the necessary flexibility. I commend them to the House. I beg to move.
Baroness Blatch: My Lords, Clauses 16 and 17 currently provide that the code of practice "may" make provision for a number of matters. The amendments seek to replace "may" with "shall" in Clause 16(2) and in seven other places in Clauses 16 and 17.
I understand the desire of the noble Lords to ensure that the code is required to do the things it currently may do. But I do not think that it is necessary to go as far as they have done in these amendments. The Secretary of State is already required to prepare a code under Clause 16, and the code is required to contain such provision as is described in subsection (1) of Clause 16. The remaining provisions of Clause 16 are designed to amplify the requirements in subsection (1) rather than to stand independently of them. Similarly,

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the provisions of Clause 17 merely give examples of what the code may include to amplify what is in subsection (5) of Clause 16.
I should also point out that the draft code is a recent creation. The comments that we have received suggest, as I said earlier, that its structure and contents are broadly right. But without further reflection and consultation we cannot be certain that it contains all that it needs to contain; nor can we be sure that it is necessary to include in the code all the provisions which it is permitted to include under Clauses 16 and 17 but which under these amendments it would be required to include. Given the status of the code—as a draft subject to consultation and to approval by Parliament—we would be reluctant to remove the flexibility that derives from the use of the word "may" rather than "shall". There will be changes of circumstance and there may be other examples. Certainly, Clause 17 is not wholly inclusive of examples that may be covered in the code of practice. However, the ultimate safeguard will be that Parliament is invited to approve the code of practice. It will be for Parliament to decide whether the Secretary of State has produced a code to secure the desired ends.
Lord McIntosh of Haringey: My Lords, I can see how this debate could degenerate into a theological debate about structure as between what is wholly codified in primary legislation and what is left to the most flexible provisions of the code of practice. I acknowledge that the Government have moved a considerable way to protecting the code of practice by providing that it shall be the subject of statutory consultation and subject to approval by Parliament. To that extent, the differences between us are at least squeezed a little.
However, I am disappointed because it seems to me that our amendments to Clause 16—Clause 17 is the peculiarity that I have already described—recognise the fact that all of those elements are included in the code of practice. I cannot see the faintest danger in drawing attention to that fact and saying that they shall not be changed. After all, they are pretty fundamental.
This very much reminds me of our debates about some of the provisions of the criminal injuries compensation scheme when, except on a few occasions, I did not succeed in persuading the Government to accept that the basic elements of criminal injuries compensation are pretty robust, pretty long-standing and ought to be (and could perfectly well be) incorporated in legislation and not left to the chance of a scheme even when that scheme is subject to parliamentary approval.
We have been over this ground before. It is an issue upon which it would be improper for me to divide the House, because it does not write any element of the scheme into legislation, although I do not say that writing some elements would not on occasion be proper upon which to divide. However, in view of the changes that have taken place in the status of the code of practice, I shall not press the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 55 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 56:
Page 10, line 26, after ("out") insert ("by a person (whether or not a police officer)").
On Question, amendment agreed to.
[Amendment No. 57 not moved.]
4.30 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 58:
Page 10, line 28, at end insert—
("( ) that if a police officer knows or believes that other investigating agencies are or may be in possession of material that is or may be relevant to the investigation, he shall notify both the agency concerned and the prosecutor.").
The noble Lord said: My Lords, again, this is an approach similar to that adopted earlier. It deals with the situation, which is not uncommon in serious criminal investigations, where a police officer in one investigation may be in the position of sharing, pooling or exchanging information with another investigating agency. I have mentioned possible agencies. There may be further ones, not least security services if legislative action is taken, as seems likely.
If the Minister says that it is better for this to be considered as part of the code, I shall entirely accept that. This is a situation where information may be obtained in a police investigation, and a different investigating agency or authority is in possession of material which may well be relevant to the defence of a an accused person or a potentially accused person. The only obligation here is—it is a limited one—to notify that other investigating agency and the prosecutor. There is no present obligation in the draft code to notify a prospective defendant. This again is put forward on the basis of wanting to make the code work in practice. There will not be many occasions when this will happen, but there will be some, and those some may be significant. I beg to move.
Baroness Blatch: My Lords, this is a more limited version of an amendment which noble Lords tabled in Committee. I have again already written to explain why we could not make provision in the draft code of practice for that amendment. It would have required the police to conduct speculative inquiries and would have given the courts a new role in directing the investigation of offences. I think that the noble Lord has accepted that in bringing forward a revised amendment for the current code of practice.
In the current draft of the code of practice, if a police officer knows that another investigating agency is in possession of material that may be relevant to the investigation, he is required to notify the agency concerned and the prosecutor. But he is not required to make speculative inquiries of other agencies to establish whether they may have any material that may be relevant.
The amendment would require the police officer to notify the agency and prosecutor if he believed that the agency might be in possession of material that might be relevant. In its more limited form, I think that may be acceptable in principle as an amendment to the draft

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code, as long as it is recognised that a police officer is under no obligation to make speculative inquiries. In other words, there must be some foundation for his belief that the other agency may be in possession of relevant material, but the noble Lord has already made that point. With that response, I hope that the noble Lord will not press the amendment.
Lord Williams of Mostyn: My Lords, I am grateful again for that reply. It was not the intention of the amendment to put the burden on any police officer or investigating agency to make speculative inquiries. It is merely that if there is knowledge or sensible, reasonable belief that there is relevant material, that would be notified to the other agency—the third party agency, as it were—and the prosecutor. I am grateful to the Minister for her helpful response. Upon that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 60:
Page 10, line 30, at end insert ("including provision that it is recorded in sufficient detail to enable the prosecutor and the accused (if the record were subsequently to be disclosed to him) to form a judgement as to its relevance").
The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 61. These are further examples of amendments that we tabled in Committee and did not move because of the state of play between the two Front Benches at that time, but which have been the subject of correspondence and a meeting between Ministers and ourselves since that time.
As the Minister will recognise, we have amended the amendments to reflect those parts of the Government's answers which we considered to have validity. We are grateful for that. In particular, our earlier amendments referred to specified information enabling the accused as well as the prosecutor to form a view as to its relevance. We recognise that if the material is sensitive, it will be recorded on a sensitive schedule and the accused will not have access to it. Therefore, it would have been improper to include the wording that we then included.
However, the issue behind the amendments is still the same. The wording used in the legislation to describe what is called in the Royal Commission report, and has been called by Ministers in correspondence,
"The schedule of material to be disclosed to the accused", is not described in that way in the legislation. Normally, the wording used is "a document". A document is not the same thing, to me at any rate, as a schedule of material which is necessary in order to comply with what I understand to be the intention of the legislation.
We are again in danger of theological points, or perhaps semantic points, about the meaning of different words and phrases and the way in which they are put together. Nevertheless, it is important to have enough detail in the primary disclosure by the prosecution. The criterion by which the amount of material to be
34
disclosed to the accused at the primary disclosure stage should not be merely administrative convenience and the workload on the prosecution.
Of course the workload and the burden must be taken into account, but the purpose of the primary disclosure by the prosecution and therefore the revelation by the investigator to the prosecution is what information will be necessary to trigger the compulsory defence disclosure which is provided for in Part I.
I still believe that it is desirable to have greater precision about what is provided in order to balance the administrative convenience and the burden of work on the investigator and the prosecutor with the interests of justice which require that the defence should have adequate information upon which to present its own disclosure and therefore contribute to a fair trial. I beg to move.
Baroness Blatch: My Lords, I have had the advantage of correspondence and discussion with the noble Lord about these amendments, in the course of which I explained to him that the main function of the schedule is to notify the prosecutor of material retained by the investigator, material which does not form part of the case against the accused and which the prosecutor will not previously have seen, so that the prosecutor can make informed decisions on disclosure. The schedule has to be sufficiently detailed for the prosecutor to do this. The amendment would not, in my view, add anything of practical value.
The second amendment requires the source, date and nature of the material to be specified on the schedule. It is not clear—at least not to me—why these specific details are required to be recorded given that the schedule must already provide sufficient detail for the prosecutor to form a view on whether any item on it needs to be disclosed. Not only is it not necessary to record information in the way specified in all cases, it would place an unjustifiable burden on the investigator to require him to do so. For example, in most cases the source of the item will be the investigator, who has generated interview records or other material.
The amendment would also require the schedule to list the names and addresses of witnesses to the offence who were known to the prosecutor and from whom witness statements had not been taken. But the function of the schedule is to list material which does exist, and I do not see why it should extend to material which does not exist.
There is another consideration which I should mention. Disclosure of the names and addresses of witnesses before the trial is not required under the law at present. I do not think it would be desirable to disclose such information. The prosecutor will know about such witnesses only if they have come forward to the police. Many witnesses come forward on the basis that their anonymity will be protected because they fear reprisals from the accused or his friends. This amendment would remove that protection. Witnesses of crimes would be more reluctant to report them. That would not be in the interests of justice. It would also treat them unfavourably in comparison with witnesses who have given witness statements and who are to give

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evidence at trial—the judge has a discretion to allow them to hand in their addresses to the court in writing rather than to read them out. As I have explained in previous debates, I cannot, for those reasons, accept these as amendments to the Bill.
Lord McIntosh of Haringey: My Lords, I accept that those are arguments—in particular the argument about the names and addresses of witnesses—which have some force and which in themselves persuade me not to press the amendment to a Division.
But we are still some way from reaching agreement about the extent to which there should be an obligation on the investigator to provide enough material to enable the prosecutor to make a good judgment about what should be disclosed to the accused.
Again, I suppose that we are stuck with the peculiar structure of this Bill. Here we have Part I of the Bill which describes the second act of the play—the process between a plea of not guilty and coming up to trial—whereas Part II describes an outline of Act 1 of the play. In a well-made play, Act 3 would be the trial itself. But Act 1 of the play is defined only in terms of the content of a code of practice, and the code of practice is not sufficiently precise and comprehensive to secure that the plot as laid down in Act 2, which is what people are mostly concerned with when they are looking at the implementation of the recommendations of the Runicman Royal Commission, unfolds clearly and that the rationale behind it is clear to the audience.
Here were are trying to secure that the structure of Act 1, the structure of the code of practice, is as clear as it is for Act 2. We recognise that it must be flexible and that there are burdens on the investigators and the prosecutor which should be minimised. But I am still not persuaded that the amendments which I have tabled do not contribute positively to the effective conduct of the disclosure process contained in Act 2 or Part I of the Bill. Nevertheless, it is not an issue on which I wish to seek the opinion of the House, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
4.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 62:
Page 10, line 31, leave out from ("code") to end of line 36 and insert ("shall include provision that all relevant material shall be retained for a prescribed period, such period—

(a) to be the same period for every police force area, although the period may differ for different categories of material and for different categories of case (including the plea entered and the length of sentence); and

(b) in any case where a criminal investigation results in a person being charged with an offence, to be at least until the period for any appeal has expired.").

The noble Lord said: My Lords, this is rather a different matter. The intention of Amendment No. 62 is to secure that the policies regarding retention of material are the same in all police forces in the country. That is a matter of very fundamental importance and it is an
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issue which the Government have fudged. I do not know the extent to which they are in negotiation with police authorities and chief police officers or how close are those negotiations to reaching an end. But to have a provision, as we do in the code of practice, which says that chief officers of police shall reproduce codes which will lay down the length of time over which material shall be retained is frankly dodging the issue. It is the responsibility of government, by agreement if possible and by diktat if necessary, to make sure that all police forces have the same policies.
The issue was somewhat muddied in Committee by our failure to recognise in the amendment which we then tabled that not all material but only relevant material has to be retained. Similarly it was muddied by our failure to make it clear than the relevant period could be different for different categories of case; in other words, for different kinds of offences and for different lengths of sentence. But now we have dealt with those problems.
Our amendment now recognises the genuine differences which would have to be taken into account in any code which is to apply to all police authorities. Our case is strengthened by having a common series of rules applying to all police forces. After all, it is not just within the scope of this Bill that we are concerned with a rational structure of retention of material. The Criminal Cases Review Authority, established last year, must have some basis on which to act which is the same for, for example, Thames Valley Police as for the Metropolitan Police or the West Mercia Police. It must be sure that there are no differences in the material available to it according to the whim of the chief constable or police authority.
As the House knows, I am not one of those who seek to extend the authority of the Home Secretary over the operations of the police force. Indeed, last year I spent a great deal of time arguing for the independence of police forces; but surely not on an issue such as this. The policy as regards the retention of material which may be required as evidence in criminal cases should be the same all over the country. It is incomprehensible to me that the Government should come forward with this legislation before they have resolved that simple negotiating issue. This amendment is of considerable importance in itself. The failure of the Government to reach a satisfactory conclusion and present it to the House is a serious criticism of their ability to get the legislation through in the form that they wish. I beg to move.
Baroness Blatch: My Lords, the noble Lord is quite right to raise the matter of a national retention period. As I have already indicated to him, that idea is attractive. Indeed, my officials will meet representatives of the Association of Chief Police Officers to discuss whether a national policy can be developed. But achieving that is not straightforward. First, each police force currently operates its own policy, retaining material for different periods and applying different criteria, and there is no common practice. Whatever policy is selected will require some forces to keep material for longer than at present and others possibly

37
for shorter. Secondly, it is not clear how long the periods should be in particular circumstances. Obviously, the longer material is retained the more likely it is to be available if a conviction is challenged long after it happened. But retaining all material for a very long period would impose unmanageable burdens. It is necessary to distinguish between those cases where material does need to be kept for a long time and those where it may be disposed of relatively quickly.
The amendment does indeed provide for different retention periods for different categories of material and different categories of case. But I am not sure that even this is quite as flexible as it needs to be. For example, it does not allow the disposal of material when a decision is taken not to bring charges.
Certainly, where a person has been charged and convicted it must be right to retain material at least until the time limit for an appeal has expired. On that, I can give the House an undertaking, as I have given to the noble Lord. that we will amend the draft code accordingly.
I hope that the House will be reassured to know that we are trying to develop a national policy for the retention of material by the police and that we hope to incorporate that into the draft code of practice before it is submitted for approval under the affirmative resolution procedure. We agree in principle; the debate is about how we get there.
Lord McIntosh of Haringey: My Lords, we must be grateful for the assurance as regards keeping material until an appeal has been heard and determined. Frankly, the rest of the argument is anarchy and it does not hold up at all. Perhaps we may take the example of the serial child killer, Black, who came from Scotland and killed children in different parts of the north of England and in the Borders region of Scotland. I believe that I am free to talk about the case because there is no question of an appeal. The evidence in the case comes from at least three different police forces, all of which are allowed to have their different rules about the retention of material. That makes no sense and the sooner the Government get their act together the better.
I shall not press the amendment in perhaps the vain hope that before Third Reading the Government will have reached agreement with the Association of Chief Police Officers. Let us hope for that and table the amendment again on Third Reading to see where we gel. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 63 not moved.]
Clause 17 [Examples of disclosure provisions]:
[Amendments Nos. 64 and 65 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 66:
Page 11, line 8, at end insert ("including the reason for his belief').
The noble Lord said: My Lords, Amendments Nos. 66, 67 and 73 relate to sensitive material. For the sake of the record, and in order to make it clear to noble Lords what is meant by sensitive material, we have
38
included in the Marshalled List, as we did in Committee, the text of the draft code of practice. I refer to Amendment No. 73. The noble Lord, Lord Campbell of Alloway, who I am sorry is not in his place, found difficulty in believing that sensitive material is so widely drawn as to include material given in confidence. If your Lordships look at items (a) to (p) in Amendment No. 73 they will see that the definition of sensitive material is extremely widely drawn. In that amendment we have not sought to restrict the definition to those items or to insist that all of them should be included because, following the example of vagueness set by the Government in Clause 17 as a whole, we have allowed that the items may be included depending on the circumstances. We are not seeking to prescribe what should be included in sensitive material.
The important amendments are Nos. 66 and 67. Amendment No. 66, line 8 on page 11, provides that if the person required to reveal the material, that is the investigator:
"has possession of material which he believes is sensitive he must give a document which…indicates the nature of that material, and…states that he so believes", and, we suggest, includes the reason for his belief.
Amendment No. 67 goes further by suggesting that the prosecutor has the responsibility for reviewing:
"whether or not it is in the public interest that it should not be disclosed to the accused".
In other words, it is defined as being sensitive. In order to do so he must have access to the sensitive material and he must have the opinion of the investigator, as provided in Amendment No. 66, as to his belief that the material is sensitive and the reasons for the belief. Without that he could hardly make a sensible judgment.
In Committee there was a certain amount of to-ing and fro-ing about security clearance. We can pass over that and take it that if there is ever to be a question of sensitive material which is concerned with national security or the intelligence and security agencies the Crown Prosecution Service will in any event ensure that the prosector is cleared for dealing with such matters. If the nature of sensitivity is confidentiality or non-security matters, security clearance is not relevant.
The fundamental principle behind the amendments still stands. Our criminal justice system requires that there should not be the possibility of enormous amounts of evidence, perhaps critical evidence, being excluded on the say so of the investigator and there being no opportunity whatever for the prosecutor to make a simple judgment; a sound judgment on whether the classification of the material as being sensitive is justified or not. Without that judgment, and without the prosecutor having the responsibility for reviewing the sensitivity decision, the prosecutor cannot make a sensible decision about what to disclose to the accused under the procedures in Part I.
We have revised the amendments that were tabled in Committee to reflect the sensible criticisms which the Minister made of them in correspondence. I hope that

39
she will recognise that what is left is a significant improvement to the provisions of the Bill. I beg to move.
Baroness Blatch: My Lords, under Amendment No. 66 the code of practice would require a police officer to indicate on the sensitive schedule the reason that he believes particular material is sensitive. This will help the prosecutor in his assessment of whether the material needs to be brought before the court for a ruling on whether it should be disclosed. It accords with current practice. I am grateful to the noble Lord for having raised the point and we will amend the draft code accordingly.
Under Amendment No. 73 the code of practice would define sensitive material for the purposes of preparing a schedule of sensitive material. The terms of the amendment are the same as those of the existing provisions of the draft code of practice. I have no difficulty with the content of the amendment but, as I have already explained to the House, I cannot accept amendments which place the detailed content of the code of practice on the face of the Bill.
I turn now to Amendment No. 67, about which I have rather more to say. The amendment inserts a new provision into the Bill after Clause 17(2). It requires the code of practice to provide that the prosecutor must be given the schedule of sensitive material; must have access to all material listed on it; and may amend the schedule in the light of his own decision about whether it is in the public interest to disclose the material listed. The effect of the Bill, which is clearly brought out in the draft code of practice, is that the police must give the prosecutor the schedule of the sensitive material and must give him access to all material listed on it. Accordingly the first two of these requirements are already catered for.
However, I have more difficulty with the third requirement. The purpose of the sensitive schedule is to draw the attention of the prosecutor to material which it may not be in the public interest to disclose. All of the material will be sensitive; some of it may fall within the test for disclosure, some of it may not. It is for the prosecutor to assess whether the material listed on the schedule meets the tests for disclosure in the Bill, and if so whether he should apply to the court for a ruling to protect it. The test whether it is in the public interest to disclose sensitive material only applies where the material would otherwise have to be disclosed because it fell within the disclosure tests in the Bill.
The noble Lord explained in Committee that his main concern was to ensure that the prosecutor and not the police was responsible for deciding what was sensitive and what was not. Although the police will initially categorise material as either sensitive or non-sensitive for the purposes of preparing schedules, it is for the prosecutor and not the police to assess whether material—sensitive or non-sensitive—should be disclosed, and it is for the prosecutor and not the police to make an application to the court if he thinks that
40
material is so sensitive that it is not in the public interest to disclose it, notwithstanding that it is of a category required to be disclosed under the provisions of the Bill.
I am concerned about the effect of the amendment in practice. It explicitly provides that the prosecutor may amend the sensitive schedule which the police have given him. Why would he want to do that? The sensitive schedule itself is not a public document. The only reason why the prosecutor would want to amend the schedule is that he intends to give the amended version to the accused. Now one of two consequences must follow from this. Either the prosecutor removes from the sensitive schedule everything except sensitive material which falls within the test for disclosure and which is not protected by the public interest test—in which case the accused will receive all material listed on the schedule, and there would be no point in giving him the schedule because there is nothing on it which he will not have seen—or the prosecutor leaves on the sensitive schedule not only sensitive material which meets the test for disclosure and which is not protected by the public interest test, but other sensitive material which is not being disclosed, either because it does not meet the test for disclosure or because it does but a court has ruled it is not in the public interest to disclose it. This would defeat the purpose of listing sensitive material on a separate schedule in the first place.
If the second scenario applies, then, as I explained when we debated this amendment in Committee, the accused would have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. This would significantly impede the fight against serious crime. As the noble Lord explained in Committee, that is not what he intends, and of course I accept that. For all of these reasons I hope again that these amendments will not be pressed.
5 p.m.
Lord McIntosh of Haringey: My Lords, I think Joseph Heller would be proud of that reply. We are in Catch-22 territory here. The responsibility of the prosecutor is to judge what elements of the schedule of material that he has been given should be given to the accused. There are two criteria that he has to take into account in making the decision on what to disclose to the accused. One is the provisions in Clause 3 as to whether it undermines the prosecution case; in other words, the entirely separate issue which we are not debating today about the criteria for disclosure. The second matter, which runs alongside the first obligation and could either add to or subtract from the material which has to be disclosed, is the question of sensitivity—of whether it is in the public interest for the matter to be disclosed.
Therefore the responsibility of the prosecutor is clear. He has to make judgments under Part I of the Bill, and under Part H of the Bill he has to decide whether material which he believes should be disclosed under Part I should in fact be withheld on the grounds that it is sensitive material. The Catch-22 matter arises because, although we have, I think, come fairly close to reaching agreement about the detail and the comprehensiveness

41
of the material to be revealed to him by the investigator, he cannot know, as the Bill is at present drafted and as the code of practice is at present drafted, whether the material that he wants to disclose should or should not he classified as sensitive. All that is happening is that he is being given a schedule of non-sensitive material—he can see the material himself if he wants to—and he is being given a list of sensitive material which he is not allowed to see. Under those circumstances I suggest that It is not possible for the prosecutor to meet his obligations under Part I unless he has the schedule of sensitive material and unless he is able to make a judgment for himself.
Of course I am grateful for the assurance the Minister has given that the provisions of Amendment No. 66 will be included in the next draft of the code. Of course we are at one about Amendment No. 73. It is not our intention that it should be included in the text of the Bill. We tabled it to help noble Lords who do not wish to carry their draft code of practice around with them. As regards Amendment No. 67, we really are in disagreement and we shall have to return to this matter. I gladly give way to the noble Baroness.
Baroness Blatch: My Lords, I wish to ask a question of the noble Lord. Did I hear him aright when he said that the prosecutor does not see the sensitive material? In fact the prosecutor sees the sensitive and the non-sensitive material but he makes judgments about the sensitivity or non-sensitivity of it.
Lord McIntosh of Haringey: My Lords, in that case much of the debate that we had about the security clearance of the prosecutor is irrelevant for a reason that I had not suspected. What we are saying in Amendment No. 67—to which the Minister is objecting—is that the prosecutor must have access to the material and may amend the document; that is, the schedule of sensitive material. He is not amending the material; he is amending the document having himself reviewed whether it is in the public interest hat it should not be disclosed to the accused. I am taken aback by the Minister's statement. If the prosecutor has access not only to the schedule of sensitive material but also to the material itself—which is what I think I am now being told—Amendment No. 67 is not dangerous but unnecessary. I shall have to reflect on what the Minister has said in both of her interventions. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 and 68 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 69:
Page 11, line 14, at end insert—
("( ) The code shall provide that a document shall be prepared under subsection (3) in every case except where the accused has indicated an intention to plead guilty or a police officer witnessed the offence and the accused has not denied the offence or indicated an intention to plead not guilty.").
The noble Lord said: My Lords, noble Lords will be relieved to know that we are coming close to the end of the series of amendments about the code of practice. However, Amendment No. 69 is genuinely designed to be helpful. I have a feeling that we have been talking at cross purposes earlier about this matter. What we are saying here relates to the debates we had at the beginning of Thursday afternoon; in other words, about what event triggers the primary disclosure by the prosecutor, because behind the primary disclosure by the prosecutor—which, under the Bill, is triggered by a plea of not guilty—lies the obligation to produce a schedule. If there is to be no disclosure, then there is no need for revelation in the first place in the form that is provided for in the legislation. Of course revelation of material designed to support the prosecution is still as necessary as always.
In Amendment No. 69 we give four examples where a document or schedule does not need to be prepared. Those are: when the accused has indicated an intention to plead guilty; when a police officer has witnessed the offence (which is where "a fair cop, Guy" comes into it); when the accused has not denied the offence; and when he has not indicated an intention to plead not guilty. With this amendment I am trying to save work for the police and the prosecutor. I suggest that there should be wider grounds on which no schedule or disclosure, and none of the elaborate to-ing and fro-ing which is provided for in the Bill, should be required. I hope that it will be thought that the amendment is helpful rather than damaging to the Bill. I beg to move.
Baroness Blatch: My Lords, unlike the tests in the current draft code of practice, the test in the amendment is not linked to any identifiable stage in the court process. An indication by the accused of a guilty plea can be made in several ways. It is not clear whether the investigator is to await a formal indication, for example at a mode of trial hearing, or whether he is to act on the basis of an informal indication which may later be reversed.
The amendment would require schedules to be prepared unnecessarily in relation to summary offences where a police officer correctly believes that the accused is likely to plead guilty at a summary trial but the accused has not given any indication of that in advance. Given the very large number of summary offences tried each year, that would represent a considerable additional burden for the police. Accordingly, we do not intend to incorporate the amendment into the draft code.
Lord McIntosh of Haringey: My Lords, we do not understand each other, or perhaps I do not understand the Minister. I am sure that that is my fault. I believe that the amendment would reduce the burdens on the prosecutor rather than the reverse. It provides for an exemption from production of a schedule in circumstances where there has not yet been a not guilty plea. That seems to me to be helpful rather than damaging. However, just in case I am wrong I had better beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Loral McIntosh of Haringey Loral McIntosh of Haringey moved Amendment No. 70:
Page 11, line 14, at end insert—
("( ) The code shall provide that the person required to reveal material must give the prosecutor, at the same time as he gives him the document prepared under subsection (3), a copy of any material which falls into the following categories—

(a) information from potential witnesses containing a description of the alleged offender which does not conform to the description of the person charged with an offence;

(b) information provided by an accused person which indicates an explanation for the offence with which he has been charged;

(c) any material casting doubt on the reliability of a confession;

(d) any material casting doubt on the reliability of a witness;

(e) details of confessions or investigations which relate to another person where the enquiry has been terminated; and

(f) any other material which the investigator believes might undermine the prosecution case or assist the accused.").

The noble Lord said: My Lords, Amendment No. 70 is a revised version of Amendment No. 92 which we put forward at the Committee stage. Again, not having debated it previously, we have the benefit of an explanation from and discussion with the Minister, for which I am grateful.
One of the Minister's objections to our previous amendment was that it included provision in the list of material to be disclosed for details of the criminal convictions of witnesses. I accept entirely that either those criminal convictions would tend to undermine the prosecution case, in which they would have to be revealed in any event, or they are irrelevant, in which case the fact of their being disclosed could discourage a witness from coming forward. Therefore, we have altered our amendment to reflect that argument.
However, we believe that it is necessary to spell out rather more than at present the details of the material which ought to be included. We have spelt those out in paragraphs (a) to (f) of Amendment No. 70. Those are matters which may not be included because they may undermine the prosecution case, but they are matters which the defence may need to know for reasons which are not evident to the prosecution. They ought to be included in the revelation procedures because they may need to be included in the disclosure. It is only the defence, which has not yet been required to make a primary disclosure, which can understand the relevance of some items to the defence case and to the conduct of the trial. That may not be obvious to the prosecution because they may not have been revealed in the right way by the investigator.
Again, we have Act 2 coming before Act 1 in the drama, which makes life extremely confusing for those of us who like to think of Act 1 coming first and like to see the plot unfold in a logical way. I believe that there is a great need for the prosecutor to have at his disposal all the elements which may be relevant to the ultimate production of an effective defence disclosure. That ought to be reflected in the code of practice, and it ought to be protected in some way by the will of Parliament in the way in which Part II of the Bill defines and constrains the code of practice. I beg to move.
5.15 p.m.
Lord Campbell of Alloway: My Lords, I have not intervened on any of the amendments and do not propose to do so on this one. That is for the simple reason that I have received copies of the correspondence between my noble friend the Minister and the noble Lord, Lord McIntosh of Haringey, relating to matters which arose after stumps were drawn in fading light and were therefore not debated on the previous occasion. I happen to agree with the substance of the correspondence and therefore have not intervened.
Baroness Blotch: My Lords, I am grateful to my noble friend for saying that he found the correspondence helpful.
The amendment specifies certain items of material which the investigator must reveal to the prosecutor. It is similar to the existing provisions of the draft code of practice. However, there are some additional requirements, about which I have already written to the noble Lord, and I shall explain to the House what those are.
The first additional requirement is that the investigator should have to provide details of confessions or investigations which relate to another person where the inquiry has been terminated. It is not clear whether the inquiry which has been terminated refers to the elimination of a person from the inquiry into the offence for which the accused stands charged or whether it refers to an inquiry into another offence altogether. In either case we do not see why the material should have to be provided unless it casts doubt on the reliability of a confession made by the accused or otherwise appears to undermine the prosecution case. In those circumstances it is already covered by the draft code. Otherwise, the requirement imposes an unnecessary burden on the investigator and provides the prosecutor with material that he does not need to see.
The second additional requirement is to reveal material to the prosecutor which the investigator believes might assist the accused. We do not think that it is right to require that. Generally, that judgment can only be made when the defence is known, and it will not be known when the investigator prepares the schedule of material. The proper time to make that assessment is after defence disclosure, not before. The amendment would operate before either primary prosecution disclosure or defence disclosure.
I hope that the noble Lord will understand that I cannot therefore accept the two additional requirements which the amendment imposes. As to the other requirements, they are already in the code and, as I have already explained to the House, I cannot accept that the detail of the amendment should feature on the face of the Bill. Nevertheless, I confirm that they are in the code.
Lord McIntosh of Haringey: My Lords, I do not want them on the face of the Bill either. I raised the matter in order to provoke debate and I am grateful to the Minister for responding as she has. Like the Government, I want the most important aspects of the code to be prescribed as far as possible by primary

45
legislation. The extent to which the code does that is recognised and welcomed, even though not all of the suggestions we have made have found favour with the Government. However, enough of them have found favour for us to be satisfied that our labours have not been in vain. I read what the Minister wrote to me about the problem of ambiguity where the inquiry has been terminated. It seems to me clear that we are talking about a different person rather than the same inquiry, but a comma or two might be helpful.
I am insistent—I really believe—that the phrase "or assist the accused" is helpful and should be included at the primary disclosure and revelation stage. It is so easy for things to go wrong because the prosecutor has to guess what the defence disclosure may reveal. It is so easy for people who in most respects are not allowed to talk to each other but who have to follow rules of communication which inevitably are artificial to fail to achieve the degree of communication which, if the process were not adversarial, would be valuable.
The anticipation of assisting the accused is the natural complement to the provision already in the code and the Bill about undermining the prosecution case. However, it is not an issue on which the House should be required to make a judgment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 to 73 not moved.]
Clause 18 [Operation and revision of code]:
Baroness Blatch Baroness Blatch moved Amendment No. 74:
Page 12, line 1, leave out from beginning to second ("he") in line 2 and insert—
("(1) When the Secretary of State has prepared a code under section 16—

(a) he shall publish it in the form of a draft,

(b) he shall consider any representations made to him about the draft, and

(c) he may modify the draft accordingly.

(1A) When the Secretary of State has acted under subsection (1) he shall lay the code before each House of Parliament, and when he has done so").
The noble Baroness said: My Lords, in speaking to government Amendment No. 74 to Clause 18, I shall, with permission, speak also to government Amendment No. 119 to Clause 53. If noble Lords opposite would think it helpful, I can refer to Opposition Amendments Nos. 75 to 77.
The government amendments require the Secretary of State to publish a draft code of practice and to consider representations made to him about it, after which he may modify the draft accordingly. He must then lay the code before Parliament. He may then bring it into operation by order made by statutory instrument, but only when the order has been approved by a resolution of each House of Parliament.
This gives effect to the recommendations of the Delegated Powers Scrutiny Committee. It is the result of reflection on its report and the debate on this issue in Committee. I understand that the scrutiny committee is content with the amendments that we have tabled.
I should point out for completeness that the amendments bring the procedure for implementing this code of practice into line with the existing procedures for implementing the codes of practice made under Section 67 of the Police and Criminal Evidence Act 1984. I beg to move Amendment No. 74.
The amendments tabled by the noble Lord opposite are designed to achieve broadly the same purpose as the government amendments—that is, to make the code subject to statutory consultation and the affirmative resolution procedure. But they are technically not quite right. Amendment No. 77 to Clause 18 provides for the Secretary of State to consult interested parties about the code, but it does not provide for him to modify the code in the light of their comments.
Amendment No. 76 to Clause 18 deletes subsection (2). That currently provides for the code of practice to apply in relation to criminal investigations beginning on or after the day appointed for the code to come into operation. The effect of the amendment is to leave the courts, police and prosecutors with no guidance on the circumstances in which the code is to apply when it is first implemented. For example, it would not be clear whether the code was to apply if the offence was committed after the appointed day; or if the offence was committed before the appointed day and a criminal investigation began after the appointed day; or if the offence was committed and a criminal investigation began before the appointed day, but criminal proceedings were instituted after the appointed day.
We have linked the commencement provision in subsection (2) to cases where the criminal investigation begins on or after the appointed day, because the code is concerned with criminal investigations by the police. If an investigation begins before the appointed day, it will be in accordance with the existing practice of the police. If it begins on or after the appointed day, it will be in accordance with the new code of practice.
In the light of this explanation I hope that the noble Lord will feel that he does not need to press his amendments but will accept the government amendment.
Lord McIntosh of Haringey: My Lords, there is nothing between us on the substance of the amendments. The Minister has made up handsomely for the failure of her office to inform her adequately about the recommendations of the Delegated Powers Scrutiny Committee which caused so much difficulty at Committee stage.
I am very ready to accept that her amendments are better drafted than mine. I am very ready to accept that they achieve the same result. I am very ready to accept that they achieve the result that would have been wished by the Delegated Powers Scrutiny Committee. It said that the additional procedural safeguards needed were provisions in the Bill for consultation about the contents of the code and for subjecting the code when it is laid before Parliament to the affirmative resolution procedure.
I wish that that could have been accepted at the beginning of our debates. As the Delegated Powers Scrutiny Committee said, there are perfectly good

47
precedents in the Police and Criminal Evidence Act 1984 and, most recently, in the Criminal Injuries Compensation Act 1995. Without being threatening, I hope that we shall not go through this issue again.
Lord Campbell of Alloway: My Lords, as I set the ball rolling on Second Reading, I really do wish to express my gratitude to my noble friend the Minister, who has kept an open mind in a difficult situation and has come to the correct conclusion.
Lord Rodgers of Quarry Bank: My Lords, having listened to our debate this afternoon when goodwill has been flowing like milk and honey from the noble Lord, Lord McIntosh, to the Minister and back, I wonder whether the Bill might have been better dealt with from the beginning by correspondence. It was difficult to make progress on the second day of the Committee stage. However, a great deal of progress has been made since that time. I wish to pay tribute to the Minister, as indeed did the noble Lord, Lord McIntosh, earlier, for the helpful correspondence to which I have had access during that period.
Whatever arguments one may have had at any stage of the Bill, in particular at Committee stage, the paperwork in relation to the Bill has been excellent in terms both of correspondence from the Minister and of other work in the department. I am aware that I may have added my name to the amendment after the Minister had conceded the principle in her letter of 17th January. However, I have no regret at having done so. In some ways this is the most important issue that we are discussing today. Had the Minister not come forward helpfully with her amendments, I hope that the noble Lord, Lord McIntosh, would have pressed his amendment to a Division.
Looking back at our rather uncomfortable discussion at what turned out to be a non-event in Committee, the House and the Minister will remember that I was among those who pressed hard for the Minister to say whether the draft code represented the policy of Her Majesty's Government—in other words, that it was the view of the Government at that stage. It seemed important to know, if we were to discuss many of the amendments to the code in the name of the noble Lord, Lord McIntosh, among others, whether or not those amendments were to be pressed to a Division.
At that time the Minister was not able to be as specific as in her letter of 17th January, in which she made clear that the draft did indeed represent the Government's view of what its provisions ought to be. That was a helpful statement. We on these Benches, among others, fully recognise that a document may be made available for consultation or modified in the light of that consultation. However, until it is modified—until the Government have considered representations and changed their minds—it represents the policies of Her Majesty's Government. Thus the amendments taken together now get the balance right.
One of my anxieties in Committee concerned the fact that over the past 20 or 30 years there has been a great deal more consultation with outside bodies. That is
48
absolutely right. It is also right that consultation should have taken place over the code of practice and that there should be further consultation in future. However, it is important that if there is such consultation it does not usurp the proper role of Parliament. When we discussed the point on the last occasion, I felt that whatever consultation there had been and might be, Parliament would not have a proper opportunity—both because of the way in which the Minister felt she had to deal with the amendments and because the order would be subject to negative resolution—to consider the important provisions of the code. However, all that anxiety has been removed and again I express my thanks to the Minister and support her amendments.
On Question, amendment agreed to.
[Amendments Nos. 75 to 77 not moved.]
Clause 19 [Effect of code]:
[Amendment No. 78 not moved.]
[Amendment No. 79 had been withdrawn from the Marshalled List.]
[Amendments Nos. 80 and 81 not moved.]
5.30 p.m.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 82:
Page 12, line 30, at end insert—
("( ) Nothing in this section shall affect registered medical practitioners.").
The noble Lord said: My Lords, in the course of Second Reading I drew attention to an anxiety expressed by the British Medical Association about the status of police surgeons and the extent to which their role might be prejudiced by the Bill. On 14th December the Minister replied to me, explaining the extent to which she was clear that that would not be the case. At the same time she made a number of appropriate points about the Bill. Her letter stated:
"If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other notes which are subject to confidentiality".
That went to the heart of the point about the dual responsibility of a police surgeon to the police and at the same time to his patients in every other respect. Following the Second Reading debate, the Minister wrote to me on 14th December and, had events not moved in the way that they did, I had intended to raise the point during Committee stage. Be that as it may, I did not do so. I am aware that discussions have taken place between the BMA and the Home Office and certain assurances have been given.
It was the traditional practice for the police surgeon to provide a statement for the police with the consent of the individual, giving only the forensic evidence obtained. However, the cause of our anxiety is that recently the police and the Crown Prosecution Service have been requiring a copy of the police surgeon's handwritten notes which include the patient's past medical history, as well as therapeutic information which the patient or the victim of the crime had given for treatment purposes. The disclosure of such

49
information is a breach of the rules of the General Medical Council which allow disclosure to the police only when there is an overriding public interest or if ordered by a court to do so.
The amendment is not so much a probing amendment as one which gives the Minister an opportunity to put on the parliamentary record in the Official Report the views that she has previously expressed to me and any other considerations which she thinks may be germane to an understanding of the issue. It may well be that at a later stage it would be right to press an amendment, perhaps in another place. However, at this stage I simply ask the Minister to comment on the amendment as it stands. I beg to move.
Baroness Blatch: My Lords, I hope that I shall be able to give the noble Lord, Lord Rodgers, the reassurance he seeks about the effect of the Bill on the disclosure of material by registered medical practitioners who act as police surgeons.
Before responding to the amendment, I ought to say that the noble Lord, Lord Walton of Detchant, is not in his place today. He wanted very much to be present but his absence from the Chamber is unavoidable. He took a close interest in the effect of the disclosure regime on registered medical practitioners. We have corresponded about the issue and I believe he would have been reassured by what I shall say in response to the noble Lord, Lord Rodgers.
The current disclosure requirements derive from a series of judicial decisions in recent cases, including the case of Judith Ward. Although there is room for interpretation, it appears that the duty of disclosure owed by the prosecution extends to almost all material generated not only by the prosecutor but by anyone who has assisted with the prosecution, including police surgeons. This is what lies behind the request of the Crown Prosecution Service for all the notes made by police surgeons when examining suspects. I can understand the difficulties which the current law causes for doctors who owe a duty of confidentiality to their patients and who have previously provided forensic statements only.
In our view, the Criminal Procedure and Investigations Bill resolves the difficulty. This is because it abolishes the common law rules relating to prosecution disclosure (except those relating to whether disclosure is in the public interest), and imposes disclosure duties on a narrower range of persons and organisations than those currently included in the concept of the prosecution team. The disclosure requirements in Part I do not affect doctors, including police surgeons, because they are not prosecutors. Part II may affect them, but only if a police surgeon is a person charged with a duty of conducting an investigation as defined in Clause 19, which requires such persons to have regard to the relevant provisions of the code of practice prepared for the police under Part II.
If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other
50
notes which are subject to confidentiality. I agree that the difficulty they now face needs to be resolved in some way.
However, in our view, a police surgeon is not an investigator for the purposes of Clause 19. Police surgeons have no statutory position within police forces, and they are under no statutory duty, under the Police and Criminal Evidence Act 1984 or elsewhere, to conduct investigations of the kind described in the Bill. On this basis, a police surgeon would be in the same position as any other third party who may have information which may be relevant to a criminal investigation, and would be under no duty arising from this Bill to retain material and reveal it to the investigator or prosecutor. The reports they prepare for the purposes of criminal proceedings would be given to the police and would be subject to the requirements of this Bill relating to disclosure. The other material they generate, which is concerned with the doctor-patient relationship, would be protected.
In the light of that explanation, I hope that the noble Lord will withdraw his amendment.
Lord Rodgers of Quarry Bank: My Lords, I am grateful for what the Minister said. I wish to reflect upon it. In her letter to me she referred to a sensible non-statutory arrangement and I understand that that is what she still has in mind. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Introduction]:
Baroness Blatch Baroness Blatch moved Amendment No. 83:
Page 13, line 6, leave out from ("relation") to end of line 13 and insert ("to an offence if—

(a) proceedings for the trial on the charge concerned are transferred to the Crown Court on or after the appointed day, or

(b) a bill of indictment relating to the offence is preferred on or after the appointed day 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).

(1A) References in subsection (1) to the appointed day are to such day as is appointed for the purposes of this section by the Secretary of State by order.
(1B) If an order under this section so provides, this Part applies only in relation to the Crown Court sitting at a place or places specified in the order.").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 2.
On Question, amendment agreed to.
Clause 24 [The preparatory hearing]:
Lord Bridge of Harwich Lord Bridge of Harwich moved Amendment No. 84:
Page 14, line 8, at end insert ("which shall include the question whether proceedings on the indictment should be stayed on the ground that they are an abuse of process").
The noble and learned Lord said: My Lords, Part III of the Bill introduces a preparatory hearing procedure which is modelled on a similar procedure already on the

51
statute book under the Criminal Justice Act 1987, but under that statute it is only applicable to serious fraud cases.
Now Part III would give to a trial judge before any criminal trial a discretion to order a preparatory hearing and consequently to make available to himself the special powers which are operative under a preparatory hearing in any case where, by reason of the length or complexity of the anticipated trial, he saw advantages in so doing, for certain defined purposes.
Once the trial judge has ordered a preparatory hearing, he then has power in the course of that hearing to make rulings in relation to any question as to the admissibility of evidence or any other question of law relating to the case. Once he has made such a ruling, the ruling becomes subject to an interlocutory appeal: in the first instance to the Court of Appeal under Clause 28 and, if necessary, on to this House in its judicial capacity under Clause 29. Both clauses make specific provision that the appeal is to be finally determined before a trial begins.
It appears to me that the philosophy underlying that scheme of preliminary rulings, made in a case where a long and difficult trial is anticipated, and the provision that they be subject to interlocutory appeal before the trial begins, serves the end of ensuring that there should be no miscarriage of justice and no abortive trial by reason of a judicial error which could have been corrected in the first place.
The sole purpose of my amendment to Clause 24(3) is to enlarge the ambit of the judge's power to make rulings in the course of the preparatory hearing; and consequentially to render subject to the provisions for interlocutory appeal to the Court of Appeal, and possibly on to the house of Lords, any decision by a judge as to whether or not proceedings on an indictment should be stayed on the ground that they are an abuse of the process of the court.
I accept that in general terms interlocutory appeals are undesirable in criminal cases. They may occasion delay. Worse still—even if, as here, leave to appeal lies only with the judge or the Court of Appeal, they may provide an opportunity for abuse of the procedure by a defendant who wants to occasion unnecessary delay if he can. That I perfectly well understand and agree with.
It appears that any delay arising from an interlocutory appeal, where a long and difficult trial is anticipated, is a price worth paying in order to ensure that disputed questions of law which will arise in any event, and questions as to the admissibility of evidence, are rightly decided before the trial begins. So, equally, it is a price worth paying in order to ensure that any decision as to whether the proceedings should be stayed as an abuse of process will be rightly decided at the beginning and before the trial starts.
In order to make good that proposition, I invite the House, and in particular the Minister, to consider a hypothetical example. A defendant is indicted for a murder that he is alleged to have committed 20 years ago. The trial judge, foreseeing a very long and difficult trial, orders a preparatory hearing under Part III of this
52
Bill when it is on the statute book. At the preparatory hearing the defendant raises two contentions. One is that the central piece of evidence, vital to the prosecution's case against him, is inadmissible. The other is that, because the trial has been so long delayed, he can no longer receive a fair trial and, accordingly, invites the judge to stay the proceedings on the ground that they are an abuse of process.
If the judge wrongly decides either of those questions in the defendant's favour, when they ought to be decided against him, it means that a man who ought to be tried will escape trial altogether. There is nothing that the prosecution can do about it. That is to say, that would be the case were neither issue subject to interlocutory appeal. If neither issue were subject to interlocutory appeal, and the judge decided both issues in favour of the Crown and against the defendant, if the judge was wrong the ruling would result in an abortive trial. If the trial led to conviction, it would eventually lead to the conviction being quashed by the Court of Appeal.
Unless my amendment is carried, the worst situation of all would be this. The judge has decided both issues against the defendant at the preparatory hearing and there is an interlocutory appeal on the question of admissibility of evidence. The defendant takes his case to the Court of Appeal, but fails there; the court says that the crucial evidence is admissible. Because he cannot, unless my amendment is carried, appeal the judge's ruling that the case should not be stayed on the ground of abuse, that is not appealable. Then there is a long trial, at the end of which he is duly convicted. There is a second appeal to the Court of Appeal—which says, no, the judge was wrong, he ought to have stayed the proceedings as an abuse of process.
I outlined this hypothetical example (in rather less detail) in correspondence to the Minister following Committee stage. I hope, in replying, she will address the example and tell us, in the light of it, how it makes sense for the Government to say that there can be an interlocutory appeal in one case but there should not be one in the other. I understand that to be the Government's case. I beg to move.
5.45 p.m.
Lord Campbell of Alloway: My Lords, there is no way in which this amendment could distress the tattered fabric of relationships between my right honourable friend and the judiciary, which is in urgent need of repair. The amendment is devoid of any political significance. In the battle of the slogans, it is neither tough nor soft on crime, and may not be so described. It is in no way concerned with judicial discretion on sentencing. The irenic purpose is to persuade, not to confront. As yet, all attempts to persuade have failed. The opinion of this House will be sought on the merits of the argument. If in favour of this amendment, it can but serve as a powerful source of persuasion.
Since another place has not, as yet, considered this Bill, the opinion of your Lordships would be advisory and without hint of confrontation. If the merits of the. argument commend themselves to the House, why not?—they may well commend themselves to another

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place. If not, on a matter such as this the House would never dream of seeking to insist that there is no element of confrontation. Such is the reality of the situation in which your Lordships' support for this amendment is sought, notwithstanding the customary measures of exhortation which government Bills inevitably attract.
As to the merits, the noble and learned Lord, with his wealth of practical expertise—advocate, red judge, member of the Court of Appeal and Member of your Lordships' Appellate Committee—commends the amendment as a sensible, requisite and procedural contribution to the due administration of justice, affecting not only public perception but the interests of the prosecution, the defence and the victims of crime. Your Lordships may well feel that the speech of the noble and learned Lord bears the hallmark of authority. The logic of his analysis to which a response is sought is not based upon any abstract esoteric process of reasoning but upon sound straightforward common sense.
As to the justification, is it not, in the simplest of terms, that it invokes an appellate procedure to rectify a wholly unsatisfactory situation, a situation in which, if an application to stay is rejected in error, a trial takes place which should never have taken place, and, if granted in error, a trial which ought to have taken place can never take place, as in such circumstances as the noble and learned Lord explained? The error may be corrected before substantive trial as regards any question of admissibility of evidence or any question of law. Why exclude the application to stay on grounds of abuse?
The effect of the amendment is none other than to introduce a procedure akin to that which obtains in Scotland. If my noble and learned friend the Lord Advocate were present, no doubt he would confirm that the procedure in Scotland is entirely satisfactory and occasions no unacceptable delay or tactical abuse. Indeed, as appears on the official record, the principle of the amendment has already claimed the sympathetic approval of my noble and learned friend the Lord Chancellor, albeit in another context. I am not aware that the amendment is opposed by any noble and learned Lord, any other member of the judiciary or any member of the legal profession.
This Bill is of general application, save as regards the serious and complex fraud cases to which the noble and learned Lord referred and which reflect similar provisions. As it is of general application, it would apply to proceedings under the War Crimes Act to avoid wrongful conviction on an abortive trial which ought not to have taken place, a matter—I stress this point—on which both Houses have made common cause. I am delighted to see the noble Lord, Lord Mishcon, in his place as it is a matter on which he addressed your Lordships, namely, the subject of a fair trial. Indeed, my noble friend Lord Ferrers gave an assurance on such matter to your Lordships' House.
Perhaps I may remind your Lordships that to that end your Lordships accepted the substance of this amendment under Clauses 2 and 3 of the War Crimes (Supplementary Provisions) Bill. To that extent, this amendment of general application would subsume those
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provisions already accepted by your Lordships. The Bill inevitably is at rest in the graveyard of another place. It is opposed by the Government.
Since Committee stage, the sands of objection have shifted to reveal an entirely new ground. But at this stage, it would be wrong to anticipate. To conclude, under the Royal prerogative, as exercised by Her Majesty's judges, the power to stay proceedings for abuse of process was assimilated by the common law as part of the inherent jurisdiction. Long before there was a Court of Appeal or an Appellate Committee of your Lordships' House, although your Lordships' House sat as a forum of appeal, that court of appeal was set up by statute. However, the statute fettered the appellate jurisdiction so as to prevent any review before conviction. This Bill proposes to remove that fetter in other respects, to which the noble and learned Lord referred, in order to avoid abortive trials.
The true and disinterested administration of justice is no exact science. Sound practical procedures such as are proposed by this amendment, your Lordships may think, are wholly requisite.
Lord Williams of Mostyn: My Lords, I support the amendment. I am happy to adopt the arguments put forward by the noble and learned Lord, Lord Bridge of Harwich, and by the noble and learned Lord, Lord Campbell of Alloway. None of the three of us could sensibly be accused of being the "villains' friend", in that particularly insulting and ill-judged phrase.
Perhaps I may offer a cruel example from the real world. A female child of three is raped. The trial judge wrongly sentences the accused to three years' imprisonment. The Attorney-General rightly takes that absurdly over-lenient sentence to the Court of Appeal, Criminal Division, which can hear the appeal and put matters right. The same judge may well rule that, because of publicity or the passage of time, the case should go no further. The child remains attacked, assaulted and wounded for life; her parents are appalled; the wider community is rightly incensed; and that cannot be put right. Where is the intellectual sensible justification for that? There is none.
I shall not touch on particular cases. I have discussed them privately with the noble Lord, Lord Campbell of Alloway. It is not suitable to mention them publicly. But, to my knowledge, there are Crown Court centres where there are serious questions about whether judges should properly have stopped cases on the grounds of abuse of process, either by virtue of delay, because of the difficulties in sexual complaints or because of adverse publicity.
The judges at first instance may be right or they may be wrong. There are no further alternatives. But their decisions in these important matters ought to be subject to review in the Court of Appeal, Criminal Division. Therefore, the importance of the amendment is not in its standing alone but in its irretrievable and necessary connection, as the noble and learned Lord, Lord Bridge of Harwich, pointed out, to Clause 28 of the Bill at present—in other words, the interlocutory appeal is allowed.

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It is otiose for the Government to say that interlocutory appeals are bad as a matter of principle in criminal cases. They certainly have disadvantages, but Clause 28 provides for exactly that. Indeed, if one traces through Clause 28, the opportunity of an appeal lies not only to the Court of Appeal, Criminal Division, but also to the Judicial Committee of your Lordships' House. That has many virtues, but speed of decision—because of the delays of which we are all aware—is not one of them.
If rulings are made to stay cases on the grounds of abuse of process, which frequently attaches itself to adverse publicity or to the difficulties in sexual cases to which I referred earlier, the public may feel and conclude that the law is not only an ass, but also a cruel, unfeeling and unthinking ass.
I do not apply my remarks to anything to do with war crimes; that is a debate long since over and in which I have no specific pressing interest. However, I have a pressing interest in this. If trials should properly be seen through, an application to stay the proceedings should be made as soon as is sensibly possible. I suggest that that is the preparatory hearing time when the evidence is to hand and when both parties have armed themselves for the coming ordeal. But it is vital that that decision by a judge at first instance, which can be devastating for legitimate complainants who want their injury examined and to an extent redressed, should be subject to appeal. It is not at the moment.
To return to my first example—I am sorry it is brutal but circumstances of that kind are cruel—why is it that there may be an appeal against an over-lenient sentence, but no appeal against a wrong decision, made too late, that a trial ought not to continue?
6 p.m.
Baroness Blatch: My Lords, following debate on this matter at Committee stage, I met my noble friend Lord Campbell and the noble and learned Lord, Lord Bridge, to discuss the issues raised. I am grateful to both of them because it was a very constructive meeting which helped to identify the arguments on both sides.
Before considering the practical effect of this amendment, it is important to be clear about the purpose of preparatory hearings. Any elaboration of procedures carries with it the risk of delay and of extra cost. We therefore considered long and hard whether to introduce preparatory hearings as an additional step in procedure but we concluded that, in exceptionally long or complex cases, the potential for streamlining the trial outweighed the possible risks. Accordingly, preparatory hearings have very specific purposes which relate to the good management of the trial. Those purposes are set out in Clause 22 of the Bill, while Clause 24 specifies the matters which may be dealt with by a judge prior to the swearing in of the jury. It was never envisaged that all matters which could arise in a case should be dealt with at the preparatory hearing. And the intention, endorsed at Second Reading by the noble and learned Lord the Lord Chief Justice is that such hearings will not be widely used.
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On that limited basis, provision has been made for interlocutory appeals on points of law and admissibility of evidence only. Those are matters on which final and authoritative rulings can be given. Abuse of process is different. It may already be dealt with by the judge at any time prior to the trial without a preparatory hearing. Accordingly, the only practical effect of the amendment would be to create an interlocutory right of appeal. But a decision whether to stay proceedings on grounds of abuse of process at one particular stage of the proceedings cannot necessarily be regarded as final. It may have to be reviewed or a further application may be made at a later stage of the proceedings in the light of changed circumstances. The arguments for having an interlocutory appeal on points of law and admissibility of evidence on which final and authoritative rulings can be given do not apply to abuse of process applications. On that basis alone, we do not believe that it is right to adapt the purposes of preparatory hearings simply to enable them to deal with abuse of process and so attract interlocutory appeals.
But there are wider practical objections. The Court of Appeal has held, in cases of which my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Bridge, are aware, that there are a range of matters which are outside the scope of preparatory hearings. Those matters include applications to sever counts on an indictment; applications to quash counts on an indictment, and applications to discharge witness summonses. We can see no rational basis for bringing abuse of process within the scope of preparatory hearings, yet not to include those and other matters. It would make them more complicated and divert them from their primary purpose of securing better management of the trial. It would mean that they might take longer because there would he a wider range of matters which might have to be resolved. It would increase costs and delays because the additional matters to be resolved could generate additional interlocutory appeals.
I had hoped to be able to give your Lordships some figures about the number of additional interlocutory appeals which might result if all those matters were to be brought within the scope of preparatory hearings. I regret, however, that such information is not collected centrally. On the other hand, perhaps it will not be a matter of regret to the House if I refrain from plying it with statistics. However that may be, it does seem likely that the number of additional interlocutory appeals which would result if this amendment is passed would be significant. That is a matter which the Law Officers have pondered carefully on a number of occasions. It remains their view, having consulted the Director of Public Prosecutions who shares their view, that any benefits which might flow would be far outweighed by the additional delays which would be inevitable.
When ruling in one of the cases about matters which are outside the scope of preparatory hearings, the Court of Appeal itself commented on the plethora of applications being received for leave to appeal against judges' rulings at preparatory hearings and the delay that was causing to other cases. It is also the case that the grounds on which an abuse of process application can

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be made are now much wider, and the law is still developing. Applications have been made on the grounds of pre-trial publicity, absent witnesses and alleged notification that no proceedings would be brought, to name but a few. And dealing with an appeal against an abuse of process decision can add months to the length of the trial. If appeals on those and other matters were made in any number, the burden on the Court of Appeal could he substantial and, in turn, that would add to delay. In those circumstances, extending the scope of preparatory hearings to a much wider range of matters would cast doubt on whether the present provisions for interlocutory appeals could be sustained or should instead be restricted or removed.
This is a complex matter and it raises some complex issues. I have sought to explain as clearly as possible why we do not think it is right to bring decisions on abuse of process within the scope of preparatory hearings. They were not intended to deal with such matters and it would divert them from their primary purpose of the good management of the trial. I recognise that the noble and learned Lord, Lord Bridge, and my noble friend Lord Campbell have reached a different view.
Just before I sit down, perhaps I can refer to the specific case raised by the noble Lord, Lord Williams of Mostyn. As I understand the provisions of this Bill, the specific case raised by the noble Lord, Lord Williams, would simply not qualify for a preparatory hearing, unless the noble Lord is suggesting that interlocutory appeal should be considered in the generality of cases and not simply for preparatory hearings. That would make his example more pertinent. But for the reasons I have given, the Government are unable to accept the amendment.
Lord Williams of Mostyn: My Lords, before the Minister sits down and the noble and learned Lord replies, perhaps I can ask a question. How is it sustainable as the Government's position that the orders made on preparatory hearings must be final, when one sees in Clause 24(11) the specific contrary? The clause states that:
"An order or ruling made under this section shall have effect throughout the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it".
Secondly, if the attorney and director both say that there may be a significant number of appeals against rulings in applications in respect of abuse of process, does not that abundantly underline and confirm the importance of the amendment?
Baroness Blatch: My Lords, with the leave of the House, the examples I gave about finality refer to admissibility of evidence and points of law. What we are saying about an appeal for stay of proceedings on the basis of abuse of proceedings is that it is an application that can be made at any time during the process of the trial. Even if the application is not granted, it is open to the accused or to the accused's lawyer to continue, especially if circumstances change
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throughout the trial, to reapply for an application. If there is any merit in these arguments it is that the prosecution could be disadvantaged, not the defendant.
Lord Williams of Mostyn: My Lords, I do not want to take up the time of the House or to trespass on the patience of your Lordships, but there is no finality about a ruling on admissibility of evidence or a ruling on any other question of law because Clause 24(11) specifically allows for it to be reviewed. That is not final; that is reviewable.
Baroness Blatch: My Lords, I am resting the Government's case on the balance with regard to allowing for interlocutory appeals at preparatory hearings on the particular issue of a stay of proceedings on the basis of abuse of proceedings. We have taken the view that the delay and the possibility of abuse of proceedings far outweigh giving in to this amendment. On that basis, I rest my case.
Lord Campbell of Alloway: My Lords, before the noble and learned Lord, Lord Bridge, replies, perhaps I may ask my noble friend one question. In her speech she referred to extending the preparatory hearing to all sorts of circumstances, such as severing the indictment and so on and so forth. Does she not appreciate that this is a limited extension in like circumstances to admissibility of evidence or a question of law? It is not extending; it is strictly limited. A distinction has not yet been drawn logically between the question of admissibility, a question of law and the substance of this amendment.
Baroness Blatch: My Lords, I understand what my noble friend is saying. He is right as it relates to the particular amendments that are being pressed by my noble friend and by the noble and learned Lord, Lord Bridge. I know that it is not their intention to extend it beyond that. The point I was making is that it would seriously weaken the case for allowing other grounds for interlocutory appeals if the amendment were accepted.
6.15 p.m.
Lord Bridge of Harwich: My Lords, the noble Lords, Lord Williams of Mostyn and Lord Campbell of Alloway, have already replied to two of the points made by the Minister in support of the Government's opposition to the amendment. That saves me from making similar replies. What is left of the points is that the amendment is objectionable because a decision whether or not to stay proceedings on the ground of abuse of process is not necessarily final and is not necessarily made before the trial.
I should have thought that in the vast majority of cases an application to have proceedings on indictment stayed on the ground that they are an abuse of process would be made before the trial. Of course it is only such decisions which my amendment would bring within the ambit of the preparatory hearing and only such decisions as would become subject to interlocutory appeals under Clauses 28 and 29. The only ground I apprehend on which a further

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application could be made in the course of a trial would be on some matter which had come to light only after the trial had begun and was not there at the time when the preparatory hearing decision was made. That does not seem to be a ground of any cogency in opposition to the main thrust of the arguments which have been advanced in support of the amendment.
Turning next to the case law to which the Minister referred, of course that is a set of decisions. I have looked at them all—all of the cases to which the Minister's advisers have drawn my attention. They are a set of decisions on the existing provisions in the Criminal Justice Act. It is true that the relevant provision corresponding to Clause 24(3) of the Bill is in the same terms. But they are decisions on the construction of that provision unamended. I am not in the least surprised that the courts have construed that provision narrowly. Indeed, the first position was that a decision on an application to stay proceedings on the ground of abuse of process was not a ruling as to any other question of law relating to the case under the corresponding provisions of subsection (3)(b) of the Bill. That is no doubt quite right. The language is not apt. But those cases do not throw any light on the merits of this amendment.
I cannot help wondering whether the Minister's advisers—who can blame her for depending on her advisers; it is only right that she should do so—are not attaching far too much importance to what they have read in decided cases. It is a habit some lawyers have that anything one can provide a specific authority for must be right if it saves one the trouble of trying to think out the general principle applicable.
Baroness Blatch: My Lords, I am most grateful to the noble and learned Lord. With the leave of the House, perhaps I may put a question to him. If, for the sake of my hypothesis, I cited the case that was put by the noble Lord, Lord Williams, and that fell outside preparatory hearings' territory, what is the case for saying that an application made in a preparatory hearing should carry with it the right of appeal—an interlocutory appeal—when the same application may have been made and a stay granted but there is no right of appeal? There seems to me to be a logic in the generality of cases but not a logic for it applying only in preparatory hearings. I think I know, underlying what the noble and learned Lord is saying, that he would prefer it to be applied in the generality of cases. But then one really does open it up to being available generally. I cannot see the distinction between allowing for an interlocutory appeal for preparatory hearings only and not for the generality of cases. In the generality of cases we would have a stronger case for saying that the scope for abuse was even greater.
Lord Bridge of Harwich: My Lords, the ground for distinction is precisely the same as the ground for distinguishing between preparatory hearings which lead to interlocutory appeals with reference to questions of admissibility of evidence and questions
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of law relating to the case. It is because the case is exceptionally long and complex that the preparatory hearing procedure provides for interlocutory appeals.
As I said in commending the amendment initially, the object is to ensure that there are no miscarriages of justice and no abortive trials brought about through judicial error which could have been corrected. In the ordinary run of cases the objection to interlocutory appeals in criminal trials on the ground of the delay that they are capable of causing outweighs any advantage to be derived from having preliminary issues finally and authoritatively settled before the trial begins. But that consideration is in turn outweighed in the exceptionally long and complex case which in the judge's discretion has earned an order that it should be the subject of preparatory hearing. The whole scheme of rulings subject to interlocutory appeals in relation to questions of law and questions of admissibility can only be designed to ensure that those questions are rightly decided at the outset.
I found nothing in the case law, adopting a narrow construction of the corresponding provisions in the 1987 Act, which in any way bears on the merits of the present proposed amendment. There is an exception as regards one observation in one case, which I believe must have influenced the Minister's advisers. She said several times in her reply that the primary purpose of the preparatory hearing procedure was to ensure the satisfactory management of the case. There is a decision of the Court of Appeal—I do not quarrel with what was decided—where some of the observations of one of the Lord Justices, in the course of delivering judgment, suggest that the whole of the preparatory hearing procedure is in some way subject to the purposes set out in Clause 22(2), which the Minister referred to generally as referring to the management of the case, and quite rightly.
A number of the powers exercisable by the judge in a preparatory hearing are designed to enhance the management of the case, to define and narrow issues and expedite the trial. The whole scheme as regards rulings as to admissibility, questions of law and making those rulings subject to interlocutory appeal, which will be finally decided before the trial begins, have nothing to do with the management of the trial. They are designed, and can only be designed, to ensure that those issues are rightly decided before the trial begins.
In my submission, precisely the same considerations apply to the desirability that when an application to stay on the ground of abuse is made at the outset it should be rightly decided, if necessary, on appeal before the trial begins. I am not wholly surprised to note that the Minister did not feel able to respond to my specific invitation to address my hypothetical example and the difficulties which will arise if there is a right of interlocutory appeal in one case, but not in the other. In those circumstances it is right to seek the opinion of the House.
6.25 p.m.
On Question, Whether the said amendment (No. 84) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 86.

Division No.3

CONTENTS

Ackner, L.

Jenkins of Hillhead, L.

Acton, L.

Jenkins of Putney, L.

Addington, L.

Judd, L.

Airedale, L.

Kennet, L.

Archer of Sandwell, L.

Kilbracken, L.

Attlee, E.

Kirkhill, L.

Barnett, L.

Lawrence, L.

Berkeley, L.

Listowel, E.

Birk, B.

Lockwood, B.

Borrie, L.

McCarthy, L.

Bridge of Harwich, L. [Teller.]

McIntosh of Haringey, L.

Broadbridge, L.

McNair, L.

Callaghan of Cardiff, L.

Mallalieu, B.

Campbell of Alloway, L. [Teller.]

Mason of Barnsley, L.

Carter, L.

Merlyn-Rees, L

Castle of Blackburn, B.

Mishcon, L.

Charteris of Amisfield, L.

Molloy, L.

Cledwyn of Penrhos, L.

Murray of Epping Forest, L.

Cocks of Hartcliffe, L.

Napier and Ettrick, L.

Craig of Radley, L.

Nicol, B.

Craigavon, V.

Palmer, L.

Dahrendorf, L.

Perry of Walton, L.

David, B.

Rea, L.

Dean of Thornton-le-Fylde, B.

Richard, L.

Desai, L.

Rodgers of Quarry Bank, L.

Dormand of Easington, L.

Sefton of Garston, L.

Dubs, L.

Shepherd, L.

Falkender, B.

Stoddart of Swindon, L

Farrington of Ribbleton, B.

Strabolgi, L.

Fisher of Rednal, B.

Taylor of Gryfe, L.

Freyberg, L.

Templeman, L.

Geraint, L.

Tordoff, L.

Gladwin of Clee, L.

Turner of Camden, B.

Graham of Edmonton, L.

Wallace of Saltaire, L.

Halsbury, E.

Waverley, V.

Hamwee, B.

Weatherill, L

Haskel, L.

Wedderbum of Charlton, L.

Hayman, B.

Whaddon, L.

Hilton of Eggardon, B.

White, B.

Hollis of Heigham, B.

Wilberforce, L.

Hylton-Foster, B.

Williams of Elvel, L.

Jeger, B.

Williams of Mostyn, L.

NOT-CONTENTS

Addison, V.

Courtown, E.

Aldington, L.

Craigmyle, L.

Alexander of Tunis, E.

Cranbome, V. [Lord Privy Seat]

Ampthill, L.

Cumberlege, B.

Archer of Weston-Super-Mare, L.

Dean of Harptree, L.

Astor of Hever, L.

Elles, B.

Blaker, L.

Ferrers, E.

Blatch, B.

Fraser of Carmyllie, L.

Blyth, L.

Geddes, L.

Boardman, L.

Gilmour of Craigmillar, L.

Boyd-Carpenter, L.

Goschen, V.

Braine of Wheatley, L.

Hanson, L.

Bridgman, V.

Hartnsworth, L.

Brigstocke, B.

Henley, L.

Brougham and Vaux, L.

Hertford, M.

Burnham, L.

Hogg, B.

Cadman, L.

Holdemess, L.

Caithness, E.

HolmPatrick, L.

Campbell of Croy, L.

Howe, E.

Carnock, L.

Inglewood, L.

Chesham, L. [Teller.]

Jenkin of Roding, L.

Clanwilliam, E.

Kenilworth, L.

Clark of Kempston, L.

Kimball, L.

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Lane of Horsell, L.

Mountevans, L.

Lindsey and Abingdon, E.

Murton of Lindisfarne, L.

Long, V.

Northesk, E.

Lucas, L. [Teller.]

Norton, L.

Lucas of Chilworth, L.

O' Cathain, B.

Lyell, L.

Orkney, E.

McColl of Dulwich, L.

Oxfurid, V.

Mackay of Ardbrecknish, L.

Pender, L.

Mackay of Clashfem, L [Lord Chancellor.]

Rankeillour, L.

Reay, L.

Mackay of Dnimadoon, L.

Rennell, L.

Macleod of Borve, B.

Selsdon, L.

Marlesford, L.

Shaw of Northstead, L.

Massereene and Ferrard, V.

Shrewsbury, E.

Melville, V.

Sudeley, L.

Merrivale, L.

Swinton, E.

Mersey, V.

Thomas of Gwydir, L.

Miller of Hendon, B.

Trumpington, B.

Milverton, L.

Tugendhat, L.

Monteagle of Brandon, L.

Vivian, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.31 p.m.
Clause 30 [Restrictions on reporting]:
Baroness Blatch Baroness Blatch moved Amendment No. 85:
Page 17, line 41, leave out ("or").
The noble Baroness said: My Lords, as drafted, Clause 30 permits the reporting of a preparatory hearing once the trial for all the defendants in the case has been concluded. The three amendments in this group will extend this provision so that an application for leave to appeal, or an appeal, in relation to a preparatory hearing may also be reported once the trial for all the defendants has been concluded. The first amendment is a consequential drafting amendment, arising from the two substantive amendments. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 86 and 87:
Page 17, line 41, at end insert —
("(aa) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,").
Page 17, line 43, at end insert ("or
(c) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,").
On Question, amendments agreed to.
Clause 32 [Meaning of pre-trial hearing]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 88 and 89:
Page 19, line 5, leave out from first ("a") to ("takes") in line 6 and insert ("hearing is a pre-trial hearing if it relates to atrial on indictment and it").
Page 19, line 9, at end insert—
("(1A) For the purposes of this Part a hearing is also a pre-trial hearing if—

(a) it relates to a trial on indictment to be held in pursuance of a bill of indictment 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), and

(b) it takes place after the bill of indictment has been preferred and before the start of the trial.").

The noble Baroness said: My Lords, these amendments were considered with Amendment No. 2. I beg to move them en bloc.
On Question, amendments agreed to.
Lord Ackner Lord Ackner moved Amendment No. 90:
Before Clause 37, insert the following new clause—
INDEMNIFICATION OF JUSTICES AND JUSTICES' CLERKS
(".—(1) Section 53 of the Justices of the Peace Act 1979 (Indemnification of justices and justices clerks) is amended as follows.
(2) In subsection (1)—

(a) after "may" insert "and shall, in the exercise of any criminal jurisdiction,": and

(b) at the end, insert "or, in the exercise of any criminal jurisdiction, unless it is proved, in respect of the matters giving rise to the proceedings or claims, he aced in bad faith".").

The noble and learned Lord said: My Lords, I do not think that we fully acknowledge the service given to the administration of justice by justices' clerks and by justices of the peace. Justices of the peace dispose of over 90 per cent. of all criminal prosecutions. They do so in their own spare time. They do so without payment and wholly voluntarily. How then do we seek to show our gratitude? Certainly not by making them, as we have, liable personally to pay the costs of successful appeals. I know of no such liability being imposed upon professional judges. I believe that I have enjoyed immunity from my days of assistant recorder onwards.
The basis for the liability is to be found in Section 53 of the Justices of the Peace Act 1979. Omitting unnecessary language for the purpose of this particular matter, that section provides as follows:
"Subject to the provisions of this section … a justice of the peace or justices' clerk may be indemnified out of local funds in respect of …
(b) … costs ordered to be paid by him in any such proceedings …
and shall be entitled to be so indemnified if, in respect of the matters giving rise to the proceedings or claim, he acted reasonably and in good faith".
Therefore, two hurdles have to be jumped: acting reasonably and in good faith.
My amendment seeks to alter the statute by providing that justices and their clerks shall, in the exercise of any criminal jurisdiction, be entitled to be indemnified unless it is proved in respect of the matters giving rise to the proceedings or claims that they acted in bad faith. That does not take away the total risk of the liability for costs; it keeps it there if the justices acted in bad faith or if it is so proved.
The information that I have received from the Justices' Clerks' Society includes the following observations: first, that the reimbursement to which the section refers is not automatic. An application has to be made to the magistrates' courts committee for indemnification in accordance with the Section 53 provisions. The indemnification is only in respect of
64
costs reasonably incurred and is obligatory only if the justices of the peace or the justices' clerk acted reasonably and in good faith.
What is "reasonable" may be a matter of dispute, more easily determined with the benefit of hindsight. I assume that the test is objective, but it might be contended that in all fairness it should be subjective. If the justice believed that he was acting reasonably, why should there be an objective test? Even though indemnification is obligatory, the magistrates' courts committee may have no funds remaining available—they are heavily strapped for cash—so that is a situation that can occur. In such a case, an application for further funds would either have to be made to the Lord Chancellor's Department or to the local authority for supplementary payments. Those parties may be unable, or even unwilling, to help. The local authority could be the body entitled to the cost, the subject matter of the award, and be in the invidious position of having to agree to reimburse or to refuse to reimburse costs due to itself. I am informed that at least one instance has been traced, some years ago, of a magistrate being left to bear the costs personally. I am told that there have been other such instances. Magistrates have expressed fears concerning bankruptcy and at least one has resigned because of her concern. I have thus been instructed by the Justices' Clerks' Society.
I shall not weary your Lordships with statistics of any size, but I can inform the House that during the period 1st January 1994 to 1st November 1995, of the response, 10 court areas—that is 8 per cent.—not including inner London which has a separate organisation, for which the clerks were responsible, had had orders for costs made against them. There are indications that at least 18 courts—that is, 15 per cent.—again excluding Inner London, have applications pending where costs against them may be sought.
Some of your Lordships may have been in the Chamber on 15th January when the noble Viscount, Lord Tenby, stimulated I believe by an order for costs in the sum of £2,000 made against his own Bench but not against himself, tabled a Starred Question. The noble Viscount had prepared a speech for today but rang me up shortly before lunch saying that he had been prevented from coming. The Question that he raised was as follows:
"Viscount Tenby asked Her Majesty's Government: Whether they are yet in a position to offer indemnity to lay magistrates in the event of a successful appeal for costs by a defendant".
The reply given by my noble and learned friend the Lord Chancellor read:
"My Lords, Section 53 of the Justices of the Peace Act 1979 already provides for a magistrate to be indemnified against costs orders. A magistrate is entitled to indemnity provided he or she acted reasonably and in good faith".
That reply astonished both the noble Viscount and myself because it had no note of urgency about it; no suggestion of criticism of the present situation.
The reason for our astonishment was in each case the same: we had been provided with a copy of a letter dated 19th December, written only a few weeks before that reply, from Mr. Jonathan Evans MP, the Parliamentary Under-Secretary in the Lord Chancellor's Department

65
addressed to Mrs. R.E.R. Thomson, chairman of the council of the Magistrates' Association. Some days ago I provided a copy of that letter to the Minister. I read, selectively, two or three short passages from it. It starts by saying:
"The Lord Chancellor has asked me, amongst other tasks he has assigned to me on my arrival here, urgently to resolve this issue".
He then goes on to refer to the immunity against actions for damages which was achieved by the medium of the Courts and Legal Services Act 1990. He states:
"However, it has since become apparent from recent case law that costs orders can and are being made against Justices in case stated or judicial review proceedings in a different range of circumstances. Whilst that case law indicates that this should happen in only exceptional circumstances, I understand your concerns both at the principle and at the uncertainty thereby created, particularly as there appears already to be an increasing number of cases in which costs orders will be sought".
The other parts I want to quote are on the second page of the letter. They are:
"I am sympathetic towards the arguments which have been put and am committed to finding a solution. My current provisional view is that it would be appropriate to provide immunity unless the Justice acted in had faith. This would require legislation".
That is precisely what I have set out to do, with the one difference—I am limited to providing this immunity from costs in criminal cases only, because this is a criminal procedure Bill and I am not entitled to go outside it.
I shall return to the way in which the Starred Question proceeded. Having recovered somewhat from his surprise, the noble Viscount said:
"My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply, which will be partly reassuring to the magistracy. However, is he aware that there is considerable anxiety within that service because of the danger that magistrates may be taken to appeal and have damages found against them?".
He means costs. He continued:
"Some magistrates are talking of resigning from the service. As this problem has been in existence for some years, will he undertake as a matter of some urgency to bring forward a solution which will be equitable with others in the legal service?".
In the course of his reply, my noble and learned friend the Lord Chancellor said:
"I think that magistrates are currently concerned that Section 53 provides an indemnity only against costs".
I am not sure how that comes about. He continued:
"I hope that we may be able to do something in this area. Obviously consultation would have to precede anything that we did. I am hoping that we might be able to go so far as a consultation at least by the middle of the year".
Again, that absence of any note of urgency was picked up immediately by the noble Lord, Lord Mottistone, who said:
"My Lords, can my noble and learned friend possibly hurry up the consultations? I believe that he referred to the middle of the year. It is a matter of great urgency. The point that the noble Viscount, Lord Tenby, made about magistrates now seeking to resign is most unwelcome. Perhaps an impression could be given that the Government will not waste any time in getting on with the consultation. Can my noble and learned friend give us that assurance?".
My noble and learned friend the Lord Chancellor said:
"My Lords. I would find it most unwelcome if magistrates were seeking to resign on this ground. It is quite clear that there is no real basis for any fear which would require them to do so".
I find that incomprehensible. I have already indicated orders which have been made, to the liability which exists, and the concern that was recorded in his own Parliamentary Under-Secretary's letter written four weeks earlier. He goes on to say:
"As I say, the law already provides for a magistrate to be indemnified against costs orders so long as he or she acted reasonably and in good faith. That is a pretty secure type of indemnity".—[Official Report, 15/1/96; cols. 359–611]
The contrast between that reply and the letter written four weeks previously was so marked that I thought that it was only right to put down this amendment so that the House could see the strange contrast between the written answer coming from the Parliamentary Under-Secretary and the verbal answer given to the House when the Question was put. As I informed your Lordships, I provided a copy of that letter some weeks ago to the noble Baroness and she was kind enough to write to me. In her letter of 1st February she said:
"As you will know the Lord Chancellor has said that he will address the question of immunity against costs orders as a matter of urgency. However, as anything which is done in respect of justices and justices' clerks would have ramifications for other judicial post holders he believes that, before moving to legislation, it would be wise to consult. As you know he has said that he would hope to issue a paper later this year.
"As this, and any legislation change which follows, will take time the Lord Chancellor is also looking at ways in which the arrangements for providing indemnity under the provisions of section 53 can be improved. This will give those affected greater confidence that the existing statutory protections will work until a longer term solution can be found".
That is precisely what I have sought to do in this amendment.
The penultimate paragraph of the letter states:
"Your amendment, while it seeks to strengthen indemnity, does not address the question of immunity".
I pause there merely to ask why it should. One is endeavouring to deal with the liability for costs on the basis that the justices have not acted reasonably. It is that which gives them the sense of insecurity. I have not sought to cure the danger arising out of bad faith. I have sought to do precisely what the Parliamentary Secretary to the Lord Chancellor's Department seemed to agree with; namely, to remove that liability on the grounds of acting unreasonably, whatever that may mean in the circumstances.
The letter goes on:
"And it would restrict additional protection to matters arising from criminal cases".
That is not my fault. Initially I sought to extend this to both criminal and civil proceedings but I was naturally called to order. The letter goes on:
"The Lord Chancellor's proposals are aimed at providing more comprehensive protection".
I am delighted to hear it, but while he is consulting and arranging for that more comprehensive protection, why should not the justices and their clerks have the very simple protection of no longer being under any liability on the basis that they have acted unreasonably?
My proposals will provide non-contentious and much-needed interim protection while the leisurely process to which I have referred takes it course. I beg to move.
Lord Rodgers of Quarry Bank: My Lords, I chose to associate my name with the amendment moved by the noble and learned Lord, Lord Ackner, very much for the reasons which he has already explained to the House and in my case in particular, in view of the exchanges which took place on 15th January to which the noble and learned Lord referred.
I confess that this was a new issue to me but I felt then that the replies were wholly unsatisfactory. Indeed, the two sentences in the remarks of the noble and learned Lord the Lord Chancellor that struck me were, first, that it was not a new problem which had arisen overnight; and secondly, that it required considerable examination in depth before Parliament would be invited to bring forward solutions.
It seems to me that if it is not a new problem but one which has been in the responsibility of government for some while—and that view is very much strengthened by the letter from the Parliamentary Secretary of 19th December to which the noble and learned Lord, Lord Ackner, referred—I cannot understand why it is only at this late hour that it requires considerable examination in depth. Having already attracted the attention of the Government, I would have assumed that it was something to which thought had been given. Therefore, coupled with the very leisurely proposals which the noble and learned Lord the Lord Chancellor then seemed to make, it seemed right to take an opportunity in the course of discussions on this Bill to resolve the matter.
Nothing that I have heard today, seen in the correspondence or noted in the exchanges which took place on 15th January convinced me that an examination in depth is required. It seems to me that it is clear that there needs to be a willingness to correct the problem and the courage to make the necessary decisions. That being so, if those decisions cannot be made today on the hoof by the Minister, I do not see why she cannot consider an amendment which may he available at a later stage.
Lord McIntosh of Haringey: My Lords, if indemnities are good enough for the judges who are paid, they are good enough for magistrates who are not paid.
Baroness Blatch: My Lords, this amendment would bring the test of whether indemnity (that is, an arrangement to make good a loss suffered by a party) should be given to justices (and justices' clerks) in line with the test for immunity (that is, freedom or exemption from legal proceedings) in respect of actions arising from matters outside a magistrate's jurisdiction. It would require bad faith to be proved.
Although the amendment proposed by the noble and learned Lord, Lord Ackner, would strengthen the indemnity provisions which are contained in Section
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53 of the Justices of the Peace Act 1979, it covers only criminal cases and therefore excludes many of the cases which, I understand, have given rise to the current concerns expressed by magistrates. Nor does it address the separate question of immunity.
As my noble and learned friend the Lord Chancellor himself explained in this House on 15th January, the Government are aware of the concerns which magistrates have and of their view that in order to be adequately protected in the proper discharge of their functions, they should be given immunity against costs orders. My noble and learned friend made the point then that legislation to give greater immunity to magistrates would have ramifications for other members of the judiciary. He has announced that he intends to issue a consultation paper later in the year.
The noble and learned Lord, Lord Ackner, suggested that what my noble and learned friend the Lord Chancellor said in the House on 15th January was inconsistent with the contents of the Parliamentary Secretary's letter of 19th December to the Magistrates' Association. There is no inconsistency. The Parliamentary Secretary said that he is sympathetic to the arguments for immunity and is committed to finding a solution. As that would require legislation and would therefore take time, he said that he would also consider improved arrangements for giving effect to the current indemnity provisions as an interim measure.
My noble and learned friend the Lord Chancellor also indicated that he wished to address the question of immunity as a matter of urgency, but said that in view of the ramifications, he thought it right to consult before bringing forward legislation. He did not refer to the proposals for finding an interim solution, but that does not signify that he has rejected them. The two strands of the proposal—looking at immunity as the preferred solution and improving the indemnity arrangements in the interim—together represent my noble and learned friend's intended approach.
I recognise the desire of the noble and learned Lord, Lord Ackner, to safeguard the interests of the magistracy. However, I believe that it would be premature to deal with the matter in this fashion. The work which my noble and learned friend the Lord Chancellor has put in hand should result in a comprehensive solution to the difficulties which have been identified and for which there is much sympathy on the part of both the Parliamentary Secretary and my noble and learned friend. This proposal would not achieve that, and for that reason I hope that the noble and learned Lord will not press the amendment.
Lord Ackner: My Lords, before the Minister sits down, will she be kind enough to tell me who are the other members of the judiciary against whom costs orders are made?
Baroness Blatch: My Lords, I cannot answer that question because I simply do not know.
Lord Ackner: My Lords, I find that surprising because the mainstay of resisting the amendment is that it is

69
premature because consultation is required and because there are other members of the judiciary who would be involved and therefore affected. It is surprising that the Minister's brief does not provide the very foundation to her resistance to the amendment. It makes me doubt even more the expedition which it is now said will occur to remedy this grossly unsatisfactory position.
We talk in high flowing language about protecting the independence of the judiciary. I would have thought that the possibility of there hanging over the heads of members of the judiciary a potential order for costs if they get their decisions unreasonably wrong is the very contradiction of independence. The risk of a judge looking over his shoulder in that situation is not to be discounted.
The Minister says that there is no conflict between the Parliamentary Under-Secretary's letter and the reply from the noble and learned Lord the Lord Chancellor. I refer merely to the strange observation at col. 361 of Hansard:
"That is a pretty secure type of indemnity".—[Official Report, 15/1/96; col. 361.1
There is clear evidence that the magistrates are unhappy and some are resigning or threatening to resign. I compare that with the phrase that I read out from the Parliamentary Under-Secretary's letter:
"I am sympathetic towards the arguments which have been put and am committed to finding a solution. My current provisional view is that it would be appropriate to provide immunity unless the Justice acted in bad faith".
I believe that this is a most important matter since it goes to the very administration of justice. I seek the opinion of the House.
7.2 p.m.
On Question, Whether the said amendment (No. 90) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 72.

Division No. 4

CONTENTS

Ackner, L. [Teller.]

Dormand of Easington, L.

Acton, L.

Dubs, L.

Addington, L.

Falkender, B.

Airedale, L.

Farrington of Ribbleton, B.

Archer of Sandwell, L.

Fisher of Rednal, B.

Barnett, L.

Fitt, L.

Berkeley, L.

Geraint, L

Birk, B.

Gladwin of Clee, L.

Blackstone, B.

Graham of Edmonton, L.

Borrie, L.

Greenway, L.

Braine of Wheatley, L

Gregson, L.

Bridge of Harwich, L.

Grenfell, L.

Broadbridge, L.

Halsbury, E.

Callaghan of Cardiff, L.

Hamwee, B.

Carter, L.

Harmsworth, L.

Cledwyn of Penrhos, L.

Haskel, L.

Clinton-Davis, L.

Hilton of Eggardon, B.

Cocks of Hartcliffe, L.

Hollis of Heigham, B.

Craigavon, V.

Howie of Troon, L.

David, B.

Hylton-Foster, B.

Dean of Thornton-le-Fylde, B.

Jeger, B.

Desai, L.

Jenkins of Putney, L.

Donoughue, L.

Judd, L.

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Kennet, L.

Rea, L.

Killbracken, L.

Richard, L

Kirkhill, L.

Rodgers of Quarry Bank, L. [Teller.]

Listowel, E.

Lockwood, B.

Sefton of Garston, L

Longford, E

Shepherd, L.

Lytton, E.

Stoddart of Swindon, L.

McCarthy, L.

Strabolgi, L.

McIntosh of Haringey, L.

Taylor of Gryfe, L.

Mason of Barnsley, L.

Templeman, L.

Merlyn-Rees, L.

Tordoff, L.

Mishcon, L.

Turner of Camden, B.

Molloy, L.

Weatherill, L

Morris of Castle Morris, L.

Wedderbum of Charlton, L

Napier and Ettrick, L.

White, B.

Williams of Elvel, L.

Nicol, B.

Williams of Mostyn, L.

Palmer, L.

Winston, L.

NOT-CONTENTS

Addison, V.

Keyes, L

Ailesbury, M.

Kimball, L.

Aldington, L

Lane of Horsell, L.

Ampthill, L.

Lindsey and Abingdon, E.

Banbury of Southam, L.

Long, V.

Beloff, L.

Lucas, L

Blaker, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Blyth, L.

Mackay of Ardbrecknish, L

Boardman, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brentford, V.

Bridgeman, V.

Mackay of Drumadoon, L.

Burnham, L.

Macleod of Borve, B.

Caithness, E

Campbell of Alloway, L.

Marlesford, L

Chesham, L. [Teller.]

Massereene and Ferrard, V.

Clanwilliam, E.

Miller of Hendon, B.

Clark of Kempston, L.

Monteagle of Brandon, L.

Colwyn, L.

Mountevans, L

Courtown, E.

Murton of Lindisfarne, L.

Craigmyle, L., B.

Northesk, E.

Dean of Harptree, L.

O'Cathain, B.

Elles, B.

Pender, L.

Elton, L.

Peyton of Yeovil, L.

Fraser of Carmyllie, L.

Rankeillour, L.

Geddes, L

Reay, L.

Goschen, V.

Rennell, L.

Hanson, L.

Selborne, E.

Hamiar-Nicholls, L

Selsdon, L

Hayhoe, L.

Shrewsbury, E.

Hogg, B.

Skidelsky, L.

Holderness, L.

Strathclyde, L. [Teller.]

HoImPatrick, L.

Thomas of Gwydir, L.

Inglewood, L.

Torrington, V.

Jenkin of Roding, L.

Trumpington, B.

Tugendhat, L.

Vivian, L.

Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.10 p.m.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 7.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Agricultural Holdings(Fee) Regulations 1996
7.11 p.m.
Lord Lucas Lord Lucas rose to move, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee].
The noble Lord said: My Lords, the purpose of these regulations is to increase, from £70 to £115, the statutory fee for the appointment by the President of the Royal Institution of Chartered Surveyors of agricultural arbitrators, or persons to make a record of the condition of an agricultural holding.
The current fee of £70 is prescribed by the Agricultural Holdings (Fee) Regulations 1985 and has been in place since 1st January 1986. That is the date on which the function of appointing arbitrators, and persons to make a record of the condition of a holding, under the 1986 Act was transferred from the Ministry to the RICS. The RICS agreed to hold the fee at the same level for at least five years from the date it was introduced. In the 10 years that have elapsed since the fee was first prescribed by regulation, the RICS has faced substantial increases in the costs of providing the service, exceeding annual levels of inflation. The institution has now applied for an increase in the fee to £115. The intention is that the new fee will take effect from 1st March this year. The agricultural industry organisations have been consulted on the proposed increase, which has been widely accepted. The case presented by the RICS for the revised fee has been carefully examined. I am satisfied that £115 is a fair and reasonable fee. I ask your Lordships to approve the regulations. I beg to move.
Moved, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee.]—(Lord Lucas.)
Lord Carter: My Lords, the House will be extremely grateful to the Minister for explaining this measure. As he said, there has not been an increase for 10 years. We understand the increase in costs that the RICS has to bear. I believe that the measure has to apply only to the RICS; otherwise, the actual wording of the 1986 Act would have to be altered. That wording requires the president of the RICS to act in this way. It is a 64 per cent. increase over the 10 years compared to an RPI of 53 per cent. However, I am sure that the Government have looked hard at the arguments that the RICS has produced for increasing the fee. We certainly agree with the measure.
On Question, Motion agreed to.

Deregulation (Corn Returns Act 1882)Order 1995
7.13 p.m.
Lord Lucas Lord Lucas rose to move, That the draft order laid before the House on 27th November he approved [5th Report from the Delegated Powers Scrutiny Committee].
The noble Lord said: My Lords, since 1882 there has been a requirement under the Corn Returns Act for all first hand purchasers of grain in England and Wales, and since 1954 in Scotland, to complete a weekly return showing the volume and price of purchases made. This currently places a requirement on some 1,400 businesses to complete and forward the required data to the Home-Grown Cereals Authority, which collects it on behalf of the Government.
In 1994, my noble friend Lord Howe set up a working group comprising both officials and industry representatives in order to review the requirements of the Corn Returns Act. The working group confirmed the continued importance to Government and industry of the data collected under the Act. However, it also recommended that the requirement to complete returns could be lifted from the very smallest traders—who accounted for less than 1 per cent. of the total purchases—without compromising the value of the resultant data. Subsequent wider consultation with the industry supported this recommendation which is being implemented by the order before you today.
Under the order traders who purchase fewer than 1,000 tonnes of British corn during any one harvest year—a harvest year runs from 1st July to 30th June—will no longer be liable to submit corn returns during the subsequent year. This will remove the return requirement from some 800 small businesses, resulting in total estimated saving to those businesses of around £100,000 a year.
With the support of the industry, the order also provides for a relaxation of the current requirement for returns to be in writing and signed. This effectively means that purchasers have to send a signed copy of the corn return by first class post. This is clearly outdated. In future, regulations made under the Act must specify at least one alternative way of submitting returns.
Since it was first laid before Parliament in June 1995, the order has been the subject of careful study by the House of Commons Deregulation Committee and this House's Select Committee on the Scrutiny of Delegated Powers. Both committees recommended acceptance of the order without amendment. I beg to move.
Moved, That the draft order laid before the House on 27th November be approved [5th Report from the Delegated Powers Scrutiny Committee].—(Lord Lucas.)
Lord Carter: My Lords, once again, we have to thank the Minister for explaining this important order. If I heard him right, he said that the Act was introduced in 1882 but it did not apply to Scotland until 1954. Why did it take Scotland 72 years to catch up with the rest of the UK? The Minister need not answer my next point now, but I would he interested to learn the actual definition of "corn" under the Corn Returns Act. I note that the noble Baroness, Lady Trumpington, is in the Chamber. She may remember that we debated an order which stated that oilseed rape had to become a cereal for a levy to be collected on it under the 1965 Act. I presume that "corn" includes wheat, barley, oats and rye. I would be interested to learn whether what I have mentioned is the case. The one other provision, I

73
presume, is to allow for the use of the Internet, computers or something similar. With those observations, I support the order.
Lord Lucas: My Lords, I think the likely provision is for fax. I do not think the Internet has caught up with most corn traders yet. As the noble Lord said, corn comprises wheat, barley, oats, rye and maize. For the purpose of this order it does not include oilseed rape which is not deemed to he a cereal for these purposes. Perhaps in future it will be but that is not the case now.
On Question, Motion agreed to.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until twenty-five minutes past seven o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.17 to 7.25 p.m.]

Criminal Procedure and Investigations Bill [H.L.]
Consideration of amendments on Report resumed.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 91:
Before Clause 37, insert the following new clause—
TRANSFER FOR TRIAL
(".—(1) Where a magistrates' court inquires into an offence as examining justice in accordance with section 6 of the Magistrates' Court Act 1980 (discharge or committal for trial) the court—

(a) shall consider only written evidence when deciding under subsection (1) of that section whether to commit the accused for trial by jury; and

(b) may, at the request of the legal representative of the accused, commit the accused for trial under subsection (2) of that section without the accused being present in court.

(2) In section 6(1) of the Magistrates' Court Act 1980, for the word "evidence" where it first occurs there shall be substituted the words "written evidence".
(3) Section 102(4) of the Magistrates' Court Act 1980 (which requires a person to attend before a court to give evidence) shall cease to have effect.
(4) Section 44 and Schedule 4 to the Criminal Justice and Public Order Act 1994 (which provide for transfer for trial proceedings in place of committal proceedings) shall cease to have effect.
(5) In this section, "legal representative" mean an authorised advocate or authorised litigator as defined) in section 119(1) of the Courts and Legal Services Act 1990 and "written evidence" means evidence tendered in writing in accordance with section 102 of the Magistrates Courts Act 1980."").
The noble Lord said: My Lords, in moving Amendment No. 91 I shall speak also to Amendments Nos. 93, 94 and 122, which have the minor additional effect of removing two clauses and a schedule from the Bill.
The amendments deal with the issue of transfer for trial from the magistrates' court to the Crown Court. It is an issue which has a history of aborted reform over a considerable period. I understand that on no fewer than
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three occasions the Government have tried to come forward with reform and on each occasion reform has been delayed.
The Royal Commission on Criminal Justice—the Runciman Commission—recommended in respect of full committals from the magistrates' court, in their present form, that where the defendant makes a submission of no case it is considered on the basis of the papers rather than in person and that the defence is able to advance oral argument in support of a submission but that witnesses should not be called.
Those who are deeply concerned with these matters; namely, the Law Society, the Justices' Clerks' Society, the Association of Magisterial Officers and the Chief Metropolitan Stipendiary Magistrate, broadly support the Royal Commission's recommendations. They had a meeting with the Home Secretary last Tuesday which led them to feel that it was necessary to air the matter again today.
The Government's proposals, which were introduced in amendments at Committee stage rather than in the Bill as originally published, replace all committals with a transfer for trial scheme. The object was to spare witnesses having to give evidence twice—once at committal and again at the Crown Court trial—and to improve the efficiency of the courts. We agree that the first of those objectives is met by the Government's amendments, but we do not think that the second objective is met. That is the reason for the amendment and the consequential amendments.
We agree that the number of committals will be reduced by the Government's proposals. However, there are not very many committals at present. Old-style committals make up only 7 per cent. of all committals, and witnesses give evidence only in some of those. The Government propose to make a radical change to make all committals unnecessary, in order to produce benefits which will in any event apply only to a small proportion of cases. It is our view that the Royal Commission's recommendations could be achieved by Amendment No. 91, which is in effect an amendment to the Magistrates' Court Act 1980. Under the amendment a court would consider only written evidence when deciding whether to commit an accused for trial by jury under subsection (1) and could, at the request of the legal representative of the accused, commit the accused for trial under subsection (2) without the accused being in court.
The reasons that we are worried about the Government's proposals are, first, that there will be delays. The Government's proposals introduce for the first time new time limits which are supposed to be a discipline. Between the mode of trial and the first hearing guidelines exist as regards eight weeks in bail cases and six weeks in custody cases. They are met in most cases. However, the problem is that the proposals are likely to bring delays. Experience is that time limits imposed in this way are used fully. In other words, cases are not made until the last minute. In order to provide a workable scheme with statutory time limits, the Government have had to extend the existing time limits to 12 weeks, an increase of 50 per cent. in bail cases

75
and 100 per cent. in custody cases. We do not believe that the Government's proposals will speed up cases coming to trial.
Secondly, we think that the Government's proposals are inflexible. They are claimed to give greater control of the pre-trial process. However, we believe that they are inflexible and will take control away from the courts. If the prosecutor fails to serve notice of the case within the prescribed period—let us remember that the prescribed period is required because the CPS has a record of taking a long time to bring a case—the court has to discharge the accused regardless of the seriousness of the offence and the strength of the prosecution evidence. That must happen under the Government's proposals. I suggest that there would be a justified public outcry.
There is no provision in the Government's proposals for the courts to require the prosecution to serve notice of its case in a shorter time than the prescribed period. The proposals take no account of whether the accused is in custody or on bail, whether the case is straightforward or complex or whether the evidence is already available or still being gathered. At present courts have some control over how long the prosecution will take and are able to press the prosecution to serve its evidence sooner if that is possible. If the prosecution do not serve a formal piece of evidence in its notice of case, that cannot be put right before the magistrates consider the evidence, and the accused will have to be discharged.
Where defendants elect for Crown Court trial but agree to summary trial after they have seen the prosecution evidence, the government scheme does not allow the accused to change their mind in cases of summary trial. Cases will be sent to the Crown Court unnecessarily.
The conclusion is that the scheme will cost more. The savings which the Minister stated at Committee would result from this scheme will be non-existent. The reverse may even take place. Where the accused is in custody there will be a larger remand prison population and greater costs for the Prison Service. There will have to be new administrative systems, new training given in their use, and new costs for the magistrates' courts, the Crown Prosecution Service and defence solicitors.
The Law Society and those concerned with magistrates' courts have always been in favour of reform. They have always wanted the same objectives that the Government have sought. But they simply do not believe that the wholesale scrapping of the existing procedures is necessary. It suggests that the more modest measures proposed in Amendment No. 91 would be better. I beg to move.
7.30 p.m.
Baroness Blatch: My Lords, I recognise that there is concern among practitioners about the new transfer procedure. That is perhaps understandable since transfer for trial represents a major change to practice and procedure in the magistrates' courts, but it is a change which I believe to be both necessary and overdue.
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Practitioners and commentators may be having difficulties in coming to terms with the principle and practical application of transfer because of the understandable tendency to try to equate it with the existing system. It is essential, though, to recognise that transfer is a completely new system for dealing with pre-trial procedure in the magistrates' courts. When Parliament decided to abolish the committal system, the central aim was to introduce an entirely new mechanism in its place, to move from a mainly court-based system to a mainly administrative one. This will bring with it significant savings, both in terms of time and cost, as well as greatly improving the efficiency of the process.
The proposed alternative set out in the amendment tabled by the noble Lord, Lord McIntosh, and the noble Lord, Lord Williams, is deceptively simple in that it appears, on the face of it, not to involve wide changes to existing legislation and practice. But it misses completely the fundamental point about the new transfer procedure which is that, in uncontested cases, as soon as the prosecution has served notice of its case, the case will automatically and immediately be transferred to the Crown Court. In 1994, over 97,000 cases—some 93 per cent. of the total—fell into that category. In such cases, there will be no need for any court hearing, or for any consideration of the evidence. The procedure will be a simple one without elaborate paperwork. Savings will arise for the courts because of this streamlining and for the legal aid bill, because it will not be necessary for the parties' representatives to attend court.
Turning to the specific details of the noble Lords' amendment, the first part—it has the effect of limiting evidence to written statements—is similar to what is proposed with regard to an application for dismissal under the transfer procedure, but with one vital difference. Under transfer arrangements, hearings where the prosecution and defence representatives are actively involved will be the exception. Most cases will be dealt with entirely on paper, with no need even for the parties to attend. Under the noble Lords' proposal, by contrast, there would be a hearing attended by all the parties in every such case. Oral submissions by the parties, but not oral evidence, would routinely be allowed.
The second part of the noble Lords' amendment, which deals with uncontested cases, still envisages a court-based procedure in such cases, although it removes the requirement on the parties to attend. Valuable court time would be taken up to no clear purpose. As I have said, the transfer procedure by contrast provides for uncontested cases (the vast majority of all cases) to be transferred automatically for trial at Crown Court.
The noble Lords' proposal would thus not deliver the efficiency savings flowing from the transfer procedure. Nor under their proposal would there be the discipline of time limits, which the Royal Commission specifically recommended. Some have argued that the prescribed time limits under transfer arrangements will result in -time delays, rather than in driving forward the proceedings as quickly as possible. I find it difficult to see why this should be so. The fact of the matter is that, under the existing committal system, the 42-day pre-trial issues guideline for service of the prosecution case

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appears to be met in only a relatively few cases. Although no comprehensive figures are available, sampling suggests that as many as 75 per cent. of cases exceed that timescale. The prescribed period of 70 days for service of notice of the prosecution case under the transfer procedure reflects that reality. It does not change it. The Government remain committed to the PTI guidelines and expect the police and the CPS to continue working to the 42-day period in the majority of cases. The 70-day period is a maximum limit. It does not mean that where cases can he processed more quickly they will not be. The 70-day period is also avowedly an initial limit. That is to say, my right honourable and learned friend the Attorney-General and my right honourable friend the Home Secretary have agreed that the position should be monitored carefully. They are both determined that the time limit should be progressively reduced. The longer prescribed period initially will mean that in the majority of cases there will be no need to apply for extensions, thereby avoiding unnecessary bureaucracy and additional burdens on the courts or on any of the parties concerned.
Implementation of the new procedure has been delayed a number of times in recognition of practitioners' concerns which the Government are addressing in these amendments. Working together with practitioners, we will be able to produce an efficient procedure to act as a filter to stop weak cases from getting to the Crown Court, and avoids the problems associated with committals. There can be no real benefits from replacing committals with a procedure which would take up similar amounts of time and resources, as proposed under the terms of the noble Lords' amendment.
I therefore hope that the noble Lord will withdraw his amendment. I should like if I may to draw another point to noble Lords' attention. The Government recognise and share practitioners' concerns that the transfer should be workable and effective. This is, of course, our principal aim in making amendments to the transfer provisions. The views of practitioners on the operational aspects of the procedure are clearly of invaluable assistance in achieving this aim. We are very grateful for their detailed comments on the mechanics of the procedure, and we are currently considering these in full.
As a result of the consultation which is still in progress, we wish to make some further technical refinements to the amendments which were tabled at Committee stage and clarification of the provisions contained in the Magistrates' Courts Act 1980, as inserted by the Criminal Justice and Public Order Act 1994. I am sure that noble Lords will agree that it is essential that we should take the views of practitioners into account so as to ensure a system that operates effectively. I am sorry that that means that we are not in a position to table the amendments at Report as originally planned, but I hope that, in the light of the reason I have given—that is consultation with those who will be affected by it—the delay in order to get the legislation right is justified.
Lord McIntosh of Haringey: My Lords, the Minister will understand that we sometimes feel that we
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are aiming at a moving target. After all, the Bill as originally introduced did not include any of the new provisions about transfer for trial. We only saw them at the Committee stage and we have to respond to them in the time between Committee and Report stages. It is longer than usual and we do the best we can in the circumstances. The Law Society and others were unable to obtain a meeting with the Home Secretary until last Tuesday and we have had to do the best we could after that. We now hear that further amendments will be introduced, presumably at Third Reading or in another place.
Baroness Blatch: My Lords, with the leave of the House, I cannot be precise about that. I shall keep the noble Lord informed and, if the amendments are not ready for Third Reading, they will have to be addressed in another place.
Lord McIntosh of Haringey: My Lords, I am grateful and recognise that any amendments would be introduced as a result of consultation with the practitioners in the field. However, the Minister will understand that I am not happy with the situation. I do not feel that we have had the opportunity that we need. However, in order to allow the consultation to continue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Transfer for Trial]:
Baroness Blatch Baroness Blatch moved Amendment No. 92:
Page 21, line 21, leave out ("to this Act").
The noble Baroness said: My Lords, Amendment No. 92 is a technical amendment which removes some unnecessary words from Clause 37. I beg to move.
On Question, amendment agreed to.
[Amendment No. 93 not moved.]
Clause 38 [Provisions connected with transfer for trial]:
[Amendment No. 94 not moved.]
Clause 40 [Either way offences: accused's intention as to plea]:
[Amendment No. 95 not moved.]
7.45 p.m.
Clause 44 [Acquittals tainted by intimidation etc.]:
Lord Ackner Lord Ackner moved Amendment No. 96:
Page 26, line 37, after ("commit") insert (", or committing,").
The noble and learned Lord said: My Lords, this amendment relates to Clause 44, regarding acquittals tainted by intimidation etc. The clause is new so far as forensic philosophy is concerned, because it sets aside an acquittal where the person has achieved that acquittal as a result of being convicted of an administration of justice offence.
The clause initially centred around the intimidation of witnesses, jurors and others. I suggested at Committee stage that, if one were to concern oneself with tainted acquittals, then perjury ought to feature. The Government kindly took up that suggestion and at

79
Committee stage provided an amendment which introduced in subsection (6) an offence involving the administration of justice, and under (c) there is,
"an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911".
The lacuna—and it is a remarkable one—in what the Government propose is this. Under Clause 44 (1)(a), a person who is the acquitted person can be the same as the person in (b) who has been convicted of an administration of justice offence. One and the same person can be the subject of the acquittal tainted by his intimidation etc. of witnesses. One would have expected the same consistency to have followed once one introduced perjury as a category of tainted acquittal. The acquittal could be obtained by the perjury of the acquitted person himself or by his having aided, abetted, counselled etc.
For some reason which I find incomprehensible, the arch villain, the person who actually commits perjury, can hang on to his acquittal, it is not tainted. He will lose his acquittal if he has not himself committed perjury but has aided, abetted, counselled, procured, suborned or incited another person to commit such an offence. The provision contains the clear lacuna which we have sought to fill by adding the words "or committing" after "commit" so as to bring within the category of tainted acquittals those that have been achieved by the acquitted person's own perjury. That makes sense. As it stands at the moment, if he himself commits the perjury, he is allowed to retain what to all the world is as tainted as, if not more tainted than, an acquittal provided for in subsection 6(c). I beg to move.
Lord Williams of Mostyn: My Lords, I am chided by my noble friend Lord McIntosh, who accused me on the last occasion of confessing that I had an open mind. I have to plead guilty. Having listened to the noble and learned Lord, I find that it is plain that there is a gap here. Vicarious liability as a concept is well known in civil law and to a limited extent in criminal law, but I have never understood the concept of vicarious liability to displace personal individual liability in criminal law. The whole of the scheme depends on double jeopardy to an extent, but as I observed on the last occasion, if I had a brother—and I do—and I get him or suborn him for a consideration (since we are both Welsh!)to carry out the offence described, he is guilty and I am not. There must be something wrong there somewhere.
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I oppose the amendment. Having had the privilege of prosecuting many cases, some of which, I regret to say, resulted in acquittals, I can readily understand the sympathy which lies behind the amendment. Any prosecutor whose efforts have resulted in an acquittal brought about by evidence he believes to have been perjured evidence would wish to have the opportunity of a second bite at the cherry.
However, having thought about the matter carefully since it was first raised in Committee, the Government have reached the firm view that the amendment takes the new matter too far. As the noble and learned Lord,
80
Lord Ackner, said, this is a new matter so far as forensic philosophy is concerned, to set aside an acquittal. Clearly the view is that the limited basis on which the Bill proceeds at the moment is as far as it would be appropriate to go. It is suggested that there is a lacuna and that as presently framed the Bill is wrong.
There is a clear distinction to be drawn between overt acts which positively interfere with the course of justice in one way or another, whether in relation to witnesses, jurors, subornation of perjury, etc., and the act of committing perjury itself. In many cases where acquittals result, perjured evidence is given. Sometimes it is given by witnesses giving evidence on behalf of the prosecution, who may be minded to assist the defendant as far as possible; in other instances the perjured evidence is given by the defendant; and in yet other cases by some witness called on behalf of the defendant. If perjury has been committed, it is always open to prosecute the perjurer for the perjured evidence he gave.
The amendment would take matters further. It would make a further inroad into the finality of criminal proceedings, which is an important principle. I accept that it has been departed from by the clause as presently framed. However, the amendment would make a far greater inroad than the Government feel is appropriate at the present time. For those reasons, while to some extent my heart sympathises with the amendment moved by the noble and learned Lord, Lord Ackner, my head is very firmly against it and I invite the House to resist it.
Lord Williams of Mostyn: My Lords, before the noble and learned Lord sits down, is he able to assist us on this question? Is there any other circumstance known to the criminal law, on either side of the Border that separates and joins us, where it is an offence to aid, abet, counsel, procure, suborn or incite, but not an offence to commit the substantive offence?
Lord Mackay of Drumadoon: My Lords, in those terms, off the top of my head, I am not quite sure that the noble Lord is correct. However, we are not concentrating on the offence that the individual has committed, but on the possible effect, an acquittal already determined by a jury. As I said earlier, Clause 44(6) concentrates upon the overt acts of individuals: whether they are perverting the course of justice, committing an offence under the 1994 Act or are guilty of an offence of aiding, abetting, counselling or procuring. Those offences can be committed only when some third party interferes with the evidence or deliberations of somebody already involved in a criminal trial. That is a clear distinction that can be drawn in deciding where one draws the line in introducing serious inroads into the finality of criminal proceedings, which is a very important part of our criminal justice system.
Were this proposal to be introduced, it would undoubtedly protract proceedings in many cases. While there may be a limited number of cases where it is possible to establish that a part of subsection (6) can be

81
made out, there are many, many more where perjury could be established. That is why I urge the House to resist the amendment.
Lord Ackner: My Lords, before the noble and learned Lord sits down, will he explain why that differentiation has not been drawn in subsection (6)(b), but only in (6)(c)? It has been accepted that (6)(b) involves, or can involve, the very person who has been acquitted; but under (6)(c)that is not to be the case. There must be some reason for the differentiation between (b) and (c).
Lord Mackay of Drumadoon: My Lords, I hesitate to disagree with my noble and learned friend but, in my construction of subsection (6)(c) as presently framed, it could be the defendant who was guilty of the offence of aiding, abetting, counselling, procuring, suborning or inciting another person. I do not see the distinction between (6)(b) and (6)(c) as currently drafted.
Lord Williams of Mostyn: My Lords, before the noble and learned Lord the Lord Advocate sits down, may I repeat the question of the noble and learned Lord, Lord Ackner, in respect of (6)(a)? The defendant could have done that.
Lord Mackay of Drumadoon: My Lords, he could indeed have done that. But in doing that he would have been guilty of an overt act outwith, or beyond, the giving of his evidence in the trial on the charge upon which he had originally been acquitted. Again, there is a distinction to be drawn where there is the giving of perjured evidence by an individual—which anyone with experience of criminal trials recognises occurs from time to time, and which is suspected by, let us say, unhappy prosecutors of occurring very frequently. That is a valid distinction and one that falls to be drawn from the situation set out in subsections (6)(a), (6)(b) and (6)(c) as to whether the defendant or some associate of the defendant requires some actings beyond the giving of the perjured evidence itself.
Clearly, assuming that the Bill becomes law in the terms in which it is presently framed, experience of the use of this section will be obtained. In the fullness of time there may be some scope for taking the matter further. The Government, having considered the matter very carefully—
Lord McIntosh of Haringey: My Lords, I beg the noble and learned Lord's pardon. I was remarking on the "if pressed" bit.
Lord Mackay of Drumadoon: My Lords, that reminds me. Because of my regretted absence earlier in giving a statement to a committee of the other place—in Inverness of all places!—I was not able to be present earlier, for which I apologise, and I have not yet read the part of the brief that says, "if pressed".
The Earl of Courtown: My Lords, perhaps I may remind noble Lords that this is Report stage. Apart from the mover, everybody else has just one crack of the whip.
Lord Ackner: My Lords, the observations of the noble and learned Lord the Lord Advocate remind me
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of a forensic story I heard. A very large Canadian QC was dining with an equally large Canadian, who was no longer a QC but who had just become a judge. The bill for the meal arrived, and the QC who was still a QC moved forward and took hold of the bill. The recently appointed judge put his great hand on top of the QC's hand and said: "Tainted, but it tain't enough". That seems to sum up exactly the submission that we have heard in this case. It is clearly tainted by the ex hypothesi forgery of the acquitted person. I can think of no better stimulus for dividing the House than to be told that I have the noble and learned Lord's heart on my side. To have broken through that granite reinforcement fills me with so much enthusiasm that I shall invite the decision of the House.
7.58 p.m.
On Question, Whether the said amendment (No. 96) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 63.

Division No. 5

CONTENTS

Ackner, L [Teller.]

Hollis of Heigham, B.

Acton, L

Jeger, B.

Addington, L.

Jenkins of Putney, L.

Archer of Sandwell, L.

Judd, L.

Birk, B.

Kilbracken, L.

Blackstone, B.

Longford, E.

Borrie, L.

McCarthy, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Craigavon, V.

Mason of Barnsley, L

David, B.

Morris of Castle Morris, L [Teller.]

Dean of Thornton-le-Fylde, B.

Desai, L.

Nicol, B.

Donoughue, L.

Richard, L.

Dormand of Easington, L.

Rodgers of Quarry Bank, L

Dubs, L.

Strabolgi, L.

Falkender, B.

Taylor of Gryfe, L.

Farrington of Ribbleton, B.

Templeman, L.

Fisher of Rednal, B.

Tordoff, L

Gladwin of Clee, L.

Turner of Camden, B.

Graham of Edmonton, L.

White, B.

Hamwee, B.

Williams of Mostyn, L.

Winston, L.

NOT-CONTENTS

Addison, V.

Cranborne, V. [Lord Privy Seal.]

Aldington, L.

Cumberlege, B.

Ampthill, L

Dean of Harptree, L.

Archer of Weston-Super-Mare, L

Denham, L.

Beloff, L.

Denton of Wakefield, B.

Blaker, L.

Goschen, V.

Blatch, B.

Harmar-Nicholls, L

Blyth, L

Harmsworth, L.

Brentford, V.

HolmPatrick, L.

Bridgman, V.

Inglewood, L.

Brougham and Vaux, L

Jenkin of Roding, L.

Burnham, L.

Kimball, L.

Caithness, E

Lane of Horsell, L.

Carnock, L

Lindsey and Abingdon, E.

Chesham, L. [Teller.]

Long, V.

Clanwilliam, E

Lucas, L.

Clark of Kempston, L.

Lucas of Chilworth, L.

Courtown, E.

Lyell, L.

Craigmyle, L.

Lytton, E.

83

Mackay of Ardbrecknish, L

Rennell, L

Mackay of Clashfern, L. [Lord Chancellor.]

Shrewsbury, E

Skelmersdale, L.

Mackay of Drumadoon, L.

Skidelsky, L

Macleod of Borve, B.

Stockton, E.

Marlesford, L.

Strathclyde, L. [Teller]

Massereene and Ferrard, V.

Swinton, E.

Miller of Hendon, B.

Thomas of Gwydir, L.

Monteagle of Brandon, L.

Torrington, V.

Northesk, E.

Trumpington, B.

O'Cathain, B.

Vivian, L.

Peyton of Yeovil, L.

Wakeham, L.

Reay, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.6 p.m.
Clause 47 [Tainted acquittals: supplementary]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 97:
Page 28, line 19, leave out ("the granting of a certificate") and insert ("a certification").
The noble and learned Lord said: My Lords, this is a minor amendment to improve the drafting of Clause 47 of the Bill. Clause 47 itself sets out amendments to the Offences Against the Person Act 1861 and the Contempt of Court Act 1981 which are consequential upon the provisions of Clauses 44 to 46, dealing with retrials following acquittals tainted by intimidation. One of the requirements for seeking a retrial is that the court before which a person is convicted of an intimidation offence must certify that it appears to the court that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. That does not actually involve the granting of a certificate, as is implied by the current text of Clause 47(4). It is more accurate to refer to it as a process of certification, which is what this amendment achieves. I beg to move.
On Question, amendment agreed to.
Clause 48 [Restriction on reporting of certain assertions]:
Baroness Blatch Baroness Blatch moved Amendment No. 98:
Page 29, line 2, leave out subsection (6) and insert—
("(6) Section (Restriction on reporting of assertions) has effect where a court makes an order under subsection (7) or (8).").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 99, 102, 103, 104, 106 and 107.
These amendments extend to Great Britain, rather than just England and Wales, the prohibition on reporting derogatory assertions which are the subject of a restriction order made by a court in England and Wales in line with the other reporting restrictions in the Bill.
The first amendment removes the existing subsection (6) of Clause 48, which specifies that the reporting restrictions apply to publications and broadcasts in England and Wales. It is replaced by a new subsection that explains that the provisions of the new clause inserted after Clause 48 will have effect where the court
84
makes an interim or final restriction order. The second amendment removes subsections (9) and (10). The text of these subsections is incorporated into one new clause (referred to below) which has the effect of extending the prohibition on reporting to Scotland.
The effect of the new clause inserted after Clause 48 is that, where an order preventing the publication or broadcasting of a derogatory assertion is made, it will prohibit reporting in Great Britain. In addition to extending the prohibition to Scotland, the new clause reproduces and replaces the effect of subsections (6), (9) and (10) of the current Clause 48.
The third and fourth amendments to Clause 49, and the fifth and sixth amendments to Clause 50, are technical amendments which translate the cross-referencing of the provisions of these clauses into references to the new clause after Clause 48 in consequence of the redrafting of the provisions. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 99:
Page 29, line 23, leave out subsections (9) and (10).
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 100:
Page 29, line 44, leave out ("(4)(a)") and insert ("(2)(a)").
The noble Baroness said: My Lords, these are technical and consequential amendments to Clauses 48 and 50. They are necessary to correct the numbering of references to subsections in Clause 48 following amendments made to that clause at Committee stage. I beg to move.
Lord McIntosh of Haringey: My Lords, I am puzzled by those comments. I thought that renumbering took place as a matter of course after amendments had been introduced. I did not know that we needed separate amendments for the renumbering.
Baroness Blatch: My Lords, if the noble Lord reads the amendment, it indicates that parts of the Bill need to be amended. For example, the first one reads,
"leave out (`4)(a)') and insert (`(2)(a)')",
and indicates consequential changes which need to be made to the Bill.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 101 and 102:
Page 29, line 46, leave out ("(4)(b)") and insert ("(2)(b)").
After Clause 48, insert the following new clause—
RESTRICTION ON REPORTING OF ASSERTIONS
(" .—(1) Where a court makes an order under section 48(7) or (8) in relation to any assertion, at any time when the order has effect the assertion must not—

(a) be published in Great Britain in a written publication available to the public, or

(b) be included in a relevant programme for reception in Great Britain.

(2) In this section—

"relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990;

"written publication" includes a film, a soundtrack and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.

(3) For the purposes of this section an assertion is published or included in a programme if the material published or included—

(a) names the person about whom the assertion is made or, without naming him, contains enough to make it likely that members of the public will identify him as the person about whom it is made, and

(b) reproduces the actual wording of the matter asserted or contains its substance.").

On Question, amendments agreed to.
Clause 49 [Reporting of assertions: offences]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 103 and 104:
Page 30, line 2, leave out ("48") and insert ("Restriction on reporting of assertions").
Page 30, line 33, leave out ("(9) and (10) of section 48") and insert ("(2) and (3) of section (Restriction on reporting of assertions)").
On Question, amendments agreed to.
Clause 50 [Reporting of assertions: commencement and supplementary]:
Baroness Blatch Baroness Blatch moved Amendment No. 105:
Page 30, line 35, at end insert ("or (2)").
The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 100. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 106 and 107:
Page 30, line 39, after ("48") insert (" or (Restriction on reporting of assertions)").
Page 30, line 42, after ("48") insert ("or (Restriction on reporting of assertions)").
The noble Baroness said: My Lords, I have already spoken to these amendments. With the leave of the House, I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
8.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 108:
After Clause 50, insert the following new clause—
Child witnesses
TELEVISION LINKS AND VIDEO RECORDINGS
.—(1) In section 32 of the Criminal Justice Act 1988 (evidence through television links) the following subsections shall be inserted after subsection (3B)—
"(3C) Where—

(a) the court gives leave for a person to give evidence through a live television link, and

(b) the leave is given by virtue of subsection (1)(b) above,

then, subject to subsection (3D) below, the person concerned may not give evidence otherwise than through a live television link.
(3D) In a case falling within subsection (3C) above the court may give permission for the person to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.
(3E) Permission may be given under subsection (3D) above—

(a) on an application by a party to the case, or

(b) of the court's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given by virtue of subsection (1)(b) above."
(2) In section 32A of the Criminal Justice Act 1988 (video recordings of testimony from child witnesses) the following subsections shall be inserted after subsection (6)—
"(6A) Where the court gives leave under subsection (2) above the child witness shall not give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording; but this is subject to subsection (6B) below.
(6B) In a case falling within subsection (6A) above the court may give permission for the child witness to give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.
(6C) Permission may be given under subsection (6B) above—

(a) on an application by a party to the case, or

(b) of the court's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given under subsection (2) above.
(6D) For the purposes of subsections (6A) and (6B) above evidence is relevant evidence if—

(a) it is evidence in chief on behalf of the party who tendered the video recording, and

(b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under subsection (3) above."

(3) This section applies where the leave concerned is given on or after the appointed day.
(4) The reference in subsection (3) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State by order.").
The noble Baroness said: My Lords, Amendment No. 108 provides for binding rulings to be made in relation to applications under Sections 32 and 32A of the Criminal Justice Act 1988 for a child witness to give evidence by live television link or by means of a video recording.
The House will be aware that these amendments were tabled at Committee stage, but not moved in order that discussions could take place on other possible changes to the child witness arrangements. The meeting which was held was primarily concerned with the amendments tabled by my noble friend Lady Faithfull and other noble Lords. So far as the Government's amendment was concerned, there was broad agreement that binding rulings were desirable.
Baroness David: My Lords, can the noble Baroness not speak quite so fast. It makes the proceedings exceedingly difficult to follow.
Baroness Blatch: My Lords, it may be helpful to the House if I briefly explain the earlier background. The process of consultation which led to the provisions of the Bill dealing with binding rulings at pre-trial hearings also revealed that binding decisions in these cases would

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be generally welcome. If decisions can be taken at an early stage in proceedings, and if those decisions can be made to stick, there will be enormous benefits for the children concerned. They can be reasonably confident that they will be able to give their evidence by live television link or by video recording. They will be able to prepare themselves on that basis which is likely to make their evidence all the more valuable. It will be very much less likely that they will be faced at short notice, and with insufficient preparation, with the trauma of having to give evidence in court.
These are compelling arguments. It is clearly in the best interests of children that there should be as much certainty as possible about the manner in which they will be giving evidence. This new clause will help to reduce uncertainty. It seeks to ensure that, once a decision has been made that a child should give evidence by live television link or video recording, it cannot lightly be reversed. But we have retained some flexibility to take account of changes in circumstances. Either party to the proceedings will be able to make an application for the child to give evidence in person if there has been a material change in circumstances. The child might, for example, have a last minute change of heart about using the live television link. Judges will retain discretion to vary an earlier ruling if it appears to be in the interests of justice to do so.
These amendments reflect the Government's continuing determination to take whatever practical steps we can to improve the arrangements for child witnesses to give evidence. We are pursuing a range of other measures. There is not time to mention them all tonight; but it may be helpful to give some examples: exploring the role for the companion who accompanies the child when using the live TV link to put the child at ease and reduce stress; engaging the Criminal Justice Consultative Council in further consideration of practical measures to ease stress on children, such as improved arrangements for familiarising children with the court and preparing them for what to expect; further consideration of ways to reduce delays in dealing with child witness cases in the courts; supporting the preparation of a video on best practice in dealing with child witnesses, including the development of more suitable questioning techniques. We welcome that project in which the NSPCC and others are involved. Government departments, including the Home Office, have already promised £20,000 towards the costs. I am pleased to be able to announce today that the Home Office will be providing an additional £30,000 this financial year; encouraging best practice in the conduct of video recorded interviews to be used as evidence-in-chief; encouraging earlier applications and decisions on the use of TV links or video recordings; and action to improve the technical quality of video recordings in order to encourage their greater use in court.
This is not a comprehensive account of all the work in hand to improve the operation of the present arrangements. We monitor them carefully, and when we identify anything that will improve the situation for child witnesses we take action, as with this amendment.
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But I am convinced that radical change to arrangements put in place barely three years ago after extensive consultation, far from benefiting children, would be potentially harmful. Rather, we need to press ahead with practical improvements which we can be confident will benefit children. That is what this amendment achieves. I commend it to the House. I beg to move.
Baroness Faithfull: My Lords, I thank my noble friend the Minister. We are all grateful for the amendments. However, perhaps I may make two points. First, if a child wants to vary or change the way in which he or she gives evidence, will the child be given the opportunity to do so? Secondly, in view of the amendments that are to follow and possible consultation between now and the next stage of the Bill, will my noble friend be willing to vary this amendment in the light of those that are to follow?
Baroness Blatch: My Lords, I touched on the point in relation to the situation where a child may wish to vary the way in which he or she gives evidence. We want as much certainty as possible. However, at the end of the day if a child decides that he or she wants to give evidence in a different way, that will need to be considered by the judge. If they are acceptable to the court and do not militate against the justice for the defendant (who is, after all, standing accused), I have no doubt that the new arrangements will be acceded to. However, the new arrangements at this stage will not include the arrangements set out in the proposals of the next set of amendments.
In relation to my noble friend's second point, it all depends on the way in which my noble friend feels that my amendment needs to be changed in the light of the following amendments. My understanding has always been that the binding rulings amendment, irrespective of what follows, is a freestanding amendment except for those that we have already spoken to.
Lord Ackner: My Lords, before the noble Baroness sits down, can I take it that she confirms that last-minute changes of heart by the child amount to, potentially, a material change of circumstances?
Baroness Blatch: My Lords, the binding ruling would determine the arrangements. If there was a last-minute change of heart, it would mean that there would need to be reconsideration by the judge of the arrangements and the degree to which he could accede to the desires of the child, so long as it was permissible within the arrangements set out in the Bill.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 109:
After Clause 50, insert the following new clause—
VIDEO RECORDINGS OF TESTIMONY FROM CHILD WITNESSES
(".—(1) Section 32A of the Criminal Justice Act 1988 shall be amended as follows.
(2) In subsection (3), paragraph (a) shall be omitted.
(3) After subsection (3) there shall be inserted,—
"(3A) Where a video recording is to be tendered in evidence under this section the court may grant leave for a child witness to be cross-examined at a pre-trial hearing in informal surroundings at which only—

(a) the judge;

(b) counsel for the parties;

(c) an appropriate adult to accompany the child as set out in the rules of court,

shall be present in the same room as the child.
(3B) At any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by rules of court.
(3C) The pre-trial hearing of the cross-examination of the child witness shall be video recorded and the video recording shall, with leave to the court, be tendered in evidence before the jury.".").
The noble Baroness said: My Lords, the purpose of this amendment is to enable children to give their cross-examination evidence at an early stage prior to the trial. The cross-examination will be video recorded and played at the trial. Under our current system, children have to wait for 10 months on average before they can be cross-examined on the evidence they provide(' in the video recorded interview. Prosecution cases can reach the transfer or committal stages within four to six weeks of the first disclosure interview. All the prosecution papers have to be with the defence by that time. If this amendment were implemented, the defence could be given a further four to six weeks to prepare for cross-examination of the child witness on video. This would reduce the waiting time for the child witness to an average of seven months. The amendment would not prejudice the legitimate rights of the defendant in any way. The welfare of child witnesses would be better protected and the interests of justice would be served because the child witness would be able to provide his or her possible evidence.
In moving this amendment I am referring also to Amendments Nos. 110 to 113A which will be spoken to by other noble Lords. Perhaps I may make some general comments. The Children Act 1989 lays down:
"When a court determines any question with respect to…the upbringing of a child…the child's welfare shall be the court's paramount consideration".
But, on the other hand, the prime duty of the criminal court is for justice to be done. Therefore, there seems to be some conflict between the welfare of the child, on the one hand, and the need for justice on the other.
I have found that there are varying opinions as to whether the Criminal Justice Acts of 1988 and 1991 are working well. The Association of Directors of Social Services is dissatisfied with the present situation. I have also heard from all the childcare voluntary organisations, including the NSPCC and the National Children's Bureau. We are grateful for their help. The police also have some reservations about the present situation. At an interdisciplinary conference held by the Sieff Foundation at Cumberland Lodge in 1995 great divisions of opinion were expressed. It therefore seems that we need to look closely at reforming the law as it stands not only for children's sake but also for the sake cif the accused.
I am the chairman of the Faithfull Foundation, an organisation of which my noble friend the Minister is well aware and one with which she has helped me. It seeks to help men who want to return to their families but cannot do so because they must have treatment. The position is that a judge can make a probation order with a condition of residence at the clinic which we run. The men tell me that if a child will not give evidence because of fear—there are many such children—and if a child gives different evidence from the evidence-in-chief, the jury and the judge are in real difficulties. In a case where the accused is discharged, the man has said to me, "Where do I stand?" Indeed, where does he stand? Is he guilty or not guilty? The social services are in a great difficulty. Do they allow the child to go home or not? I thought that I should bring this matter to your Lordships' attention.
Opinions on the judicial side vary. Some circuit judges agree with the present situation and consider that it is working well in their courts. Others consider that it is not working well. There is a division of opinion among the QCs. At a dinner party the other night I was speaking to a QC. He disagrees with the present arrangements and wants changes. He is conducting research on the matter. It seems to me that after five years' experience we need to give careful consideration to the future. I wonder whether before the next stage of the Bill we might have interdisciplinary consultation between all those concerned with the welfare of the child and justice for the accused.
Amendment No. 110 is a new clause to which the noble Baroness, Lady David, will be speaking. She will also be speaking to Amendments Nos. 111 and 112. The noble Lord, Lord Acton, will be speaking to Amendment No. 113 and the noble Lord, Lord McIntosh of Haringey, will be speaking to Amendment No. 113A. I beg to move.
Baroness David: My Lords, I should like to support this group of amendments and have great pleasure in doing so, as I normally do like to support the noble Baroness, who takes such trouble about all these matters of children, justice and the courts.
I should like to say a word about Amendment No. 110. The purpose of the amendment is to give the court power to allow a video recording to be accepted as an alternative to written evidence in circumstances where a child witness cannot attend the trial. Leave can already be given under the provisions in Sections 42 and 43 of the Children and Young Persons Act 1933 for children to give written evidence in specified circumstances where they cannot attend a trial. Video taped evidence would allow the court to see and hear a child witness giving evidence. This is clearly a superior form of evidence to that which is already accepted. If the provisions in the Children and Young Persons Act 1933 were expanded to include video taped depositions we might well see these procedures brought to life whereas they are currently not used in our jurisdiction. This is in contrast to other jurisdictions, where broadly similar provisions are widely used. Video taped evidence would be a very substantial improvement, surely, on written evidence which is now allowed.

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I should like to move on to Amendment No. 111. The purpose of this amendment is to give the court power to order that advocates' questions should be put to the child by a person who is better able to communicate with the child and with whom the child feels comfortable—someone thoroughly experienced in dealing with children. This could apply to children with disabilities as well as to very young or very disturbed children. Once again, this amendment is based on the proposal from the Pigot Committee that a court could only grant leave in appropriate cases. I should like to emphasise that this amendment refers to very young or very disturbed children. The interlocutor might be a paediatrician, a child psychiatrist or a social worker. The role of that person would be similar to that of the interpreter in court where a witness does not know the language.
In other words, this provision would only be appropriate where the child witness would be prevented from giving a full account of his or her evidence were it not for the help of the interlocutor. Particularly vulnerable children who have been abused, such as children with learning difficulties, should not be denied the opportunity to take part as child witnesses in criminal proceedings.
It will be equally important to be certain that the defendant's interests are protected by ensuring that counsel for the parties decide what questions are to be put to the child. It will be for the judge to ensure that the interlocutor puts the questions in a neutral manner. This should ensure that Article 6.3.c of the European Convention on Human Rights is not contravened. The article states:
"Everyone charged with a criminal offence has the following minimum rights…to defend himself in person or through legal assistance of his own choosing".
At present many vulnerable children who have been abused cannot be heard under our criminal justice system. Those children should not be denied the opportunity to be child witnesses in criminal proceedings. This amendment will help to give those children a voice in our judicial system. This is a very important amendment both for the child and for justice.
The third amendment I wish to speak to is Amendment No. 112. The purpose of this amendment is to ensure that the child witness is given an opportunity to express his or her views on whether they wish to give their evidence prior to the trial or wait until the trial. A number of us have been trying for a long time to get the views of the child accepted in various Bills and this again is another attempt to do so.
This amendment was debated in Parliament during our discussions on the Criminal Justice Bill in May 1991. It was said then that everyone agrees that it is best practice to take account of the wishes of the child when deciding how a child witness should give evidence. However, it was also said that the consultation does not need express provision in statute. But nearly five years later, those who have had the greatest experience of working with that Act, as it now is—and that means a great many people who are officers in the NSPCC—
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regrettably see at first hand how frequently the wishes and feelings of child witnesses are not known by the court and are not properly taken into account. All too often the lines of communication are so weak that basic information does not get relayed from the child to the judicial system or from the judicial system to the child.
The amendment will give child witnesses an opportunity to express their views at a level appropriate to their age and understanding. But it would not be for the child to determine the matter. It will remain the judge's responsibility to balance the interests of the parties and of justice in all the circumstances of the case.
If express provision were made for this consultation in the statute we would begin to see consistent, fair and equal treatment of all child witnesses across the country in relation to this issue. I would like to add that the Metropolitan Police see a very real need for counsel and judges to become far more child aware in their dealings with these cases.
Our present criminal justice system is not meeting the needs of children or of justice. The purpose of this group of amendments is to eliminate unnecessary stress which is caused to child witnesses. Reducing their stress will not only result in the positive benefit of protecting the child's welfare; it will also mean that the interests of justice will be served because the child witness will be more able to give his or her best possible evidence.
I support the noble Baroness. This is an extremely important group of amendments. Although I appreciate very much what the noble Baroness, Lady Blatch, has put forward in her amendment, I would like very careful consideration to be given to this very important group of amendments.
8.30 p.m.
Lord Acton: My Lords, I have put my name to Amendments Nos. 109 to 113, and I would like to speak to Amendment No. 113.
Under this amendment a child witness who has already been cross-examined under Amendment No. 109, to which the noble Baroness, Lady Faithful], spoke, may be recalled by the court for a further out-of-court hearing. That would happen when it appears to the court to be in the interests of justice; for example, when fresh evidence comes to light. In this way the defendant's rights are preserved. The conditions at the second hearing would be the same as at the first hearing.
Thereafter, the defence can make an application for a further out-of-court hearing only if there has been a further material change since the second hearing. A significant proportion of children will undoubtedly not be recalled. Those children who are recalled will at least have had most of their cross-examination got out of the way and recorded on video at a much earlier stage. Moreover, they will have had the benefit of therapy thereafter.
In the interests of justice to the defendant, Amendment No. 113 forms an essential part of a scheme, with Amendment No. 109. Perhaps I may add that the Criminal Bar Association supports the principle of Amendments Nos. 109 and 113. I join with the noble Baroness, Lady David, in all that she has said as regards

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the amendment of the noble Baroness, Lady Blatch, and the group of amendments spoken to by the noble Baroness, Lady Faithfull
Lord McIntosh of Haringey: My Lords, I rise to speak to Amendment No. 113A. I was not involved in this matter before. I came into it because I had the good fortune to be invited by the Minister and the noble Baroness, Lady Faithfull, to what I found to be a very interesting and helpful meeting at which the NSPCC and the Home Office officials concerned with these matters were able to exchange views very freely and openly. I have no professional or personal knowledge of what happens in court, and therefore I do not have any view about the other amendments in particular. However, it was brought home to me by that discussion that one of the most important keys both as regards the civilised way to deal with child witnesses and the quality of evidence, and therefore the quality of justice, was that the delay between the offence and the child giving evidence at the trial should be as short as possible. I understood that in many cases a trial takes place and the child gives evidence eight months, 10 months or even more than a year after the offence has taken place and the charge has been laid. That is both unfair to the child in that it cannot embark on any programme of therapy or help and also unfair to justice and the defendant in that the child's memory is likely to become less accurate and its confidence in giving evidence is likely to be less.
Therefore, it seems to me that the key to this matter, whatever the justice or otherwise of the other proposals, is to bring these cases to court as quickly as possible. I am confirmed in that view by the letters from the Lord Chief Justice and the Minister to the noble Baroness, Lady Faithfull, which came together. The Lord Chief Justice confirmed that his object was to bring these cases to trial as quickly as possible.
It seems to me that there is only one way to bring cases on quickly, and that was confirmed by the transfer of trial debate which we had earlier this evening; namely, to set time limits. Unless there is a time limit, we shall get into the classic situation where there is no listing of the case because there is no assurance that the defence and the prosecution are ready. The defence and the prosecution do not conclude their case because there is no listing and therefore nothing happens. If there were a fixed timescale as proposed in Amendment No. 113A, with the provision, as shown in the second part of the amendment, for that to be varied with the approval of the court, then everyone would know that the case had to be prepared, as I am sure that it can be, so that the children can give evidence as quickly as possible and be released to get on with their lives and with whatever therapy is necessary. I strongly support Amendment No. 113A.
Lord Ackner: My Lords, the noble Baroness, Lady David, referred to our debate in May 1991 when we considered the question of fully implementing the Pigot Report. I supported the amendments that were designed for that purpose and was able to tell the House that the Council of Her Majesty's Circuit Judges supported Pigot both when the report came out and despite the criticisms
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made in the House in the debate on the Criminal Justice Bill the previous month. I also informed the House that the Criminal Bar Association was also in favour of the full implementation of the Pigot Report, which would have meant cross-examination following, as soon as the defence was able, on the examination-in-chief, or whatever was the appropriate description.
I also attended the meeting to which the noble Lord, Lord McIntosh, referred, and at that stage had assumed that the present support for the full implementation of Pigot continued to exist, particularly as one of the circuit judges who had been in communication with the noble Baroness, Lady Faithfull, had indicated that. It was following the meeting called by the noble Baroness, Lady Blatch, that I learnt that the Lord Chief Justice had asked Lord Justice Rose to confer with his group to discover the attitude to having cross-examination earlier, and before the trial. The information which we received, and which was recorded in the letter from the Lord Chief Justice to the Minister, indicated that the judges consulted by Lord Justice Rose were not in favour of the proposals.
The judges who are at the sharp end of the subject are the circuit judges. Therefore, anxious to see whether there had been a change in the reaction of the Council of Her Majesty's Circuit Judges, I recently got in touch with the president, his Honour Judge Fawcus, who got in touch with Judge Balston, the chairman in charge of the committee concerned with this aspect of law reform. In the very limited time available, he sought views. Some of the views were provided under a misconception that the proposal was that within days of the completion of the video of the evidence-in-chief the defence should be obliged to cross-examine. That was never the proposal. The proposal always was that that should happen as soon as the defence was ready to cross-examine. That might be a matter of even two or three months. As the noble Baroness, Lady Faithful], said, there is a degree of split between the judges as to how the present system is working. All of them agree that a balance has to be held between the interests of the child witness and fairness to the defendant. The question is how to achieve that balance.
One of the factors which is holding up the speedy implementation of trials is the public interest immunity plea which is taken in regard to local authority documents where the child is in care because the defence wishes to see whether there is any material which relates to the defence. The public interest immunity plea is then taken and the unfortunate judge has to wade through a mass of documents to see to what extent the plea is valid and to what extent there is material which will assist the defence.
I very much agree with the proposal of the noble Baroness, Lady Faithfull, that more minds have to be brought to bear on this question. Experiences need to be exchanged and consideration must be given to trying to expedite the hearing because the answer to the rival views is accepted by them to be, "Get the hearing on as soon as you can and then the question of having the cross-examination prior to the trial won't arise".

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I should like to make one final point with regard to the proposals. The bogeys that are always produced are that you have the cross-examination and everybody is happy, but that all of a sudden new material comes onto the scene and the child has to be recalled, and then more new material comes onto the scene and there are further recalls and recalls. That is not how I envisaged it at all. If there has to be a recall, I have always assumed that that recall will take place at or very close to the trial because if further requests for cross-examination arise, those are all grouped together.
However, there is a danger of over-exaggerating the risk of recall. One is not dealing with many potential defences. The question of consent does not arise as it does with many sexual offences. The issue often may be: did it ever happen at all? Is it a case of childish imagination? Was it the defendant who was the guilty party or some other person? That does not throw up many potential fields for further cross-examination once cross-examination has taken place at a time when the defence is confident of being able to exercise it. Therefore, as I have said, I support very much the noble Baroness, Lady Faithfull.
8.45 p.m.
Viscount Brentford: My Lords, perhaps I may briefly support the amendments and make one or two additional points that have not yet been made. Although I support Amendment No. 108, I believe that there are some significant additions in the current group of amendments which I should like to see incorporated into the Bill. As the noble and learned Lord, Lord Ackner, rightly said, we are pressing for fairness and justice between the prosecution, the defendant and the child witness. Clearly, it is a question of balance. Although the prosecution and the defence will have their members of the Bar with them, the main problem with which we are all concerned is the welfare of the child. That is the most tricky point to resolve.
Various points have been made to me in my discussions with people who are expert with young children. First, where there is a long delay, it is perfectly possible for a child who has had a nasty experience to be able, as a self-defence mechanism, to blot the memory right out of his or her mind. That means that, although the child will give evidence on a video shortly after the event, if six months then pass before recall, the child may quite truthfully have no recollection of the event. That does not mean that the child has had therapy and has been cured of the trauma of the disastrous event, because it will resurface later. It means that the later bout of evidence will be unreliable. Therefore I urge that we do our utmost to ensure speedy events and for any recall evidence to be unable to contradict what was said previously. I have been given examples of how that has wrecked cases.
I should like to emphasise the need to have any child hearings, whether videoed or not, in informal surroundings. While I do not press for judges to wear jeans and a teeshirt to hear a matter involving a child, I press for an informal room, with the parties not wearing
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robes or wigs. If a child can be signed off after a video hearing at which, after all, defence and prosecution representatives are present, the therapy can begin straightaway, as the noble Lord, Lord Acton, rightly said. That is important for the welfare of the child.
As the 1994 Social Services Inspectorate report on this matter stated:
"The users of the video link are more likely to describe the proceedings as fair".
That is the right and proper way in which we should be going. Therefore I end where I began: in the pursuit of fairness these amendments are important. I hope that further consultations will bear fruit before Third Reading. I warmly support the principles embodied in the amendments.
Baroness Blatch: My Lords, the Government share the concern for the welfare of child witnesses which has motivated this group of amendments. When introducing them, my noble friend mentioned our recent meeting to discuss the child witness arrangements and how they might be improved. It was a very helpful meeting and illustrated that there is much more upon which we agree than upon which we differ. The Government accept that there is scope to improve the present arrangements. I outlined a few minutes ago the range of measures which we are taking. We are confident that they will secure practical benefits for children. I have to say that we are not persuaded that the same can be said of the changes proposed in these amendments.
My noble friend has explained that the new clause (Amendment No. 109) provides for pre-trial cross-examination of children to be conducted in informal surroundings and to be video recorded for use at the trial. The aim is to conduct the cross-examination sooner so that the quality of evidence is better, stress is reduced and the child can, if necessary, receive therapy sooner. I think we would probably all agree that if those benefits could be achieved they would be a prize worth having. Unfortunately, we doubt that they can be achieved. Indeed, we are concerned that the result could be more stress for the child, not less. As your Lordships would expect, on an issue as important as this, we have also sought the views of the Lord Chief Justice who shares our concerns.
Although it might be possible to put some questions at an early stage, a proper cross-examination cannot take place until the defence is fully prepared and ready to proceed with the trial. I might say in passing that that is where the delays arise. They are proper delays, because until the defence is properly prepared for the trial it would be inappropriate and unfair to go ahead. That means that in most cases cross-examination could not take place more than a few days earlier than at present. I recognise that the further amendment (Amendment No. 113A) tabled by my noble friend seeks to reduce delays by imposing a time limit within which the pre-trial cross-examination must take place. For the reasons I have just explained, the practical effect would be to impose a time limit within which both sides must be ready, not just for cross-examination, but for the trial to proceed. It is clear, therefore, that pre-trial

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cross-examination does not of itself provide a practical solution to the problem of delay. It is a problem which we are keen to tackle. We and the Lord Chief Justice believe that action to reduce delay provides a better way of helping children than pre-trial cross-examination. Whether time limits of the kind proposed by my noble friend have a part to play in achieving that objective is a matter which we need to consider carefully and as regards which we need to consult others.
We are concerned also that whenever it does take place, pre-trial cross-examination could lead to recall and more stress for the child. It is most unlikely that in a contested case the defendant would guarantee not to seek a recall in any circumstances. The amendments recognise that a recall might be needed and provide that it shall take place out of court and under the same conditions as the original cross-examination. The scope for recalls is a matter upon which we have specifically sought the views of the Lord Chief Justice. He considers that further questions which the defence want to put to the child might easily arise and that, bearing in mind the judge's overriding responsibility to ensure a fair trial, the judge could not reasonably refuse the defence the chance to do so. The result would be not one cross-examination as at present, but two or perhaps even more. The possibility of recall would create uncertainty for the child who might have to appear again at short notice.
I understand the desire that children who are victims of these hideous crimes should receive any therapy they need as soon as possible. But again, pre-trial cross-examination does not appear to provide the answer. It is already possible for therapy to be given in some cases in advance of the trial. But if cross-examination cannot be done much earlier than at present, and if there would still be the possibility of recall, the difficulties of providing therapy in certain cases would still arise under these proposed arrangements.
If we were convinced of the benefits of pre-trial cross-examination, we would have adopted it by now. There are genuine reservations—reservations which I must say are shared by the Lord Chief Justice and his senior colleagues—about the principle of pre-trial cross-examination and its potential effect on the child. Those reservations must be resolved before it would be right to legislate. We will continue to keep the arrangements under review, but we cannot support this new clause.
The new clause (Amendment No. 110) appears to be designed to achieve a similar outcome, but by a different route. Sections 42 and 43 of the 1933 Act were intended to provide a method of getting emergency so-called "sick-bed" evidence by children tested at the bedside and admitted into court. The test that giving evidence in court would involve a serious danger to the child's life or health is a very high one to meet. That may explain why the provisions are hardly ever used. In addition, evidence taken that way is admissible only if the defence has had an opportunity to cross-examine the child. In other words, allowing video recording of evidence taken that way raises all the difficulties about
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pre-trial cross-examination to which I have just referred. If a child is seriously ill it must be doubtful whether the child should be expected to have to video record evidence or undergo cross-examination. If a child is fit enough to give evidence on video or a live link, the best course must be to make use of the specific provisions which have been introduced following the Pigot Report. Those provisions are subject to detailed rules of court and the Memorandum of Good Practice is designed to ensure that they operate as effectively as possible.
My noble friend explained how the amendment to provide for questioning by an intermediary would work. It is also important to recognise that the proposal assumes that provision has been made for video recording of pre-trial cross-examination which, as I have explained, the Government cannot support. That apart, it is clear that we are not talking about the use of interpreters who are already used when necessary. Nor would there be any benefit to the child if the intermediary relayed the question in precisely the same style and words. The proposal is that the intermediary should be able to adjust the style and content of the questioning. The danger here is that in doing so, the intermediary could ask questions in a way that is prejudicial to the conduct of the case, and so to the interests of the child, and flies in the face of justice for the defendant. Questions could be misunderstood or may lose their purpose and the value of spontaneous dialogue could be lost.
Those are reservations which were recognised by the Pigot Committee when the proposal was first made. They are concerns which the Lord Chief Justice shares. There are ways in which the present arrangements might be improved to try to ensure that so far as possible questioning of children reflects their particular needs and abilities. We are considering what more can be done to encourage best practice.
The Government accept that the wishes of the child should be taken into account in deciding whether to make use of the facilities to give evidence by live TV link or video recording. That is already the firm policy of the Crown Prosecution Service. It may sometimes not be possible to obtain the child's views before, as this amendment requires, an application to the court is made. The difficulty with statutory requirements of this kind is that they cannot always cater for the variety of cases which arise in practice. Where, as in this case, the objective can as well, and more flexibly, be achieved without legislation, we believe that that is the right course. We shall, as part of our further work to improve the existing arrangements, be seeking ways to ensure that the wishes of the child are so far as possible taken into account at all stages.
I am sorry to have spoken at such length, but it is important that the arguments for and against these amendments should be properly understood. We all have the same objective—making it easier for children to give their evidence with the minimum of distress. The Government are determined to implement changes which fulfil that objective. In addition to provision for binding rulings, there are a number of practical steps which we are taking to improve the present arrangements—measures which aim to increase the use

99
of video recorded evidence; make the television link easier to use; and, with the additional £30,000 funding we are providing, encourage best practice in dealing with child witnesses. We believe we should focus our efforts on achieving such practical improvements which will benefit children.
My noble friend posed a particular question. She asked whether I would respond positively to a request to meet an inter-disciplinary team. That is a useful suggestion and I would be prepared to meet such a team. I should like us to focus our attention on the ways in which the arrangements are working now and to consider proposals that the Government have put in hand and see how they will work while at the same time discussing other issues. I believe that it would be difficult to achieve fruitful conclusions between now and Third Reading. However, I have no argument at all in relation to the suggestion made by my noble friend.
I believe that monitoring should continue and that we should continue to do what can be done which is both compatible with justice to the defendant and addresses the pressures and stresses created for child witnesses.
9 p.m.
Baroness Faithfull: My Lords, I thank the Minister for that very full explanation which we are very grateful to have. However, I am disappointed. We are working in a democracy and it seems to me that we are not listening to the people who do the work; namely, social services workers, voluntary organisations, many, although not all, of the circuit judges and many, although not all, of the QCs and other members of the Bar. We must listen to the people who do the work and who have had experience of the provisions over the past five years. I realise that the noble Baroness has made some very valuable proposals which may improve matters, but I believe that they will not meet the anxieties which have been expressed this evening.
I wish to consider this matter between now and Third Reading. I wish there to be an inter-disciplinary meeting, which I believe could be arranged. On that basis, I hope that other noble Lords whose names are to the amendment will allow me to withdraw it this evening.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 113A not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 114:
After Clause 51, insert the following new clause—
("Fraud
FRAUD
. Schedule (Fraud) (which amends provisions relating to serious or complex fraud) shall have effect.").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 123 and 144. These provisions contain a number of amendments to the Criminal Justice Act 1987 in respect of the provisions on preparatory
100
hearings in cases of serious or complex fraud to ensure that, where necessary, the provisions in the 1987 Act are consistent with those in Part III of the Bill.
The main changes are as follows. First, Section 9 of the 1987 Act is amended so that an order made before the preparatory hearing will have the same status at the trial as an order made at the preparatory hearing. Secondly, new Section 9A after Section 9 provides that where a judge makes an order before the preparatory hearing, that order will be subject to the same provisions as orders made at the hearing. Thirdly, the judge may comment, and the jury may draw inferences, from any failure by either party to comply with the requirement of an order made before, as well as at, the preparatory hearing. Similarly, the judge may comment and the jury may draw inferences from any departure from the case disclosed before the hearing in exactly the same way as at the hearing. Finally, the reporting restrictions under Section 11 of the 1987 Act are brought into line with those under Part III of the Bill and a number of omissions in the 1987 Act are rectified. There are a number of other technical amendments of limited consequence. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 115:
After Clause 51, insert the following new clause—
("Alibi
ALIBI
.—(1) Section 11 of the Criminal Justice Act 1967 (notice of alibi) shall cease to have effect, but subject to the following provisions of this section.
(2) Subsection (1) does not affect the application of section 11 of the Criminal Justice Act 1967 to proceedings before courts-martial by virtue of section 12 of that Act.
(3) The reference in section 12 of the Criminal Justice Act 1967 to section 11 as it applies to proceedings on indictment shall be construed as a reference to it as it would apply to proceedings on indictment apart from subsection (1) of this section.
(4) In section 9(6) of the Criminal Justice Act 1987 (disclosure in cases involving fraud) in paragraph (a) for the words "section 11 of the Criminal Justice Act 1967" there shall be substituted "section 5(5) of the Criminal Procedure and Investigations Act 1996".
(5) This section applies in relation to alleged offences into which no criminal investigation, within the meaning given by section 1(4), has begun before the day appointed under section 1(5).").
On Question, amendment agreed to.
Clause 53 [Orders and regulations]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 116 to 118:
Page 32, line 19, at beginning insert —
("( ) This section concerns the power of the Secretary of State to make an order or regulations under this Act.").
Page 32, line 19, leave out ("under this Act").
Page 32, line 22, leave out ("under this Act").
The noble and learned Lord said: My Lords, in moving these amendments I shall speak also to Amendment No. 120. These are technical amendments. Clause 53 provides that the power to make an order under the Bill is to be exercised by statutory instrument. This is designed with orders made by the Secretary of State in mind. The Bill also provides for the court to

101
make an order in certain circumstances; for example, an order relating to the disclosure of material to the accused under Part I. These are not orders which should be made by statutory instrument. Accordingly, Amendment No. 116 limits Clause 53 to orders made by the Secretary of State. The other three amendments are consequential. I beg to move.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 119:
Page 32, line 23, at end insert—
("(2A) No order under section 18 shall have effect unless approved by a resolution of each House of Parliament.").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 74. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 120:
Page 32, line 24, leave out ("under this Act").
The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 116. I beg to move.
On Question, amendment agreed to.
Clause 54 [Extent]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 121:
Page 32, line 27, leave out from ("exception") to end of line 28 and insert ("of—

(a) sections 30, 31, 34, 35, (Restriction on reporting of assertions), 49, 50(3), (Fraud), this section and section 56;

(b) paragraph 6 of Schedule (Fraud), and paragraph 7 of that Schedule so far as it relates to paragraph 6;

(c) paragraph 8 of Schedule 3 so far as it relates to provisions amending section 11 of the Criminal Justice Act 1987.").

The noble and learned Lord said: My Lords, Clause 54(1) sets out the provisions of the Bill which extend to Scotland. The relevant provisions are concerned with reporting restrictions which operate throughout Great Britain. This amendment is consequential on two other sets of government amendments to the Bill which have been made on Report and which also extend to Scotland. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Transfer for Trial]:
[Amendment No. 122 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 123:
After Schedule I, insert the following new schedule—
("SCHEDULE
FRAUD
Introduction
1. The Criminal Justice Act 1987 shall be amended as provided by this Schedule.
Preparatory hearings
2. In section 7 (power to order preparatory hearing) subsections (3) to (5) (power to make order that could be made at the hearing) shall be omitted.
3.—(1) Section 9 (the preparatory hearing) shall be amended as follows.
(2) In subsection (7) (warning of possible consequence under section 10(1)) the word "(1)" shall be omitted.
(3) In subsection (10) for the words "at or for the purposes of a preparatory hearing" there shall be substituted "under this section".
4. The following section shall be inserted after section 9—
"Orders before preparatory hearing.
9A.—(1) Subsection (2) below applies where—

(a) a judge orders a preparatory hearing, and

(b) he decides that any order which could be made under section 9(4) or (5) above at the hearing should be made before the hearing.

(2) In such a case—

(a) he may make any such order before the hearing (or at the hearing), and

(b) subsections (4) to (10) of section 9 above shall apply accordingly."

5. The following section shall be substituted for section 10 (later stages of trial)—
"Later stages of trial.
10.—(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under section 9 above.
(2) Where—

(a) a party departs from the case he disclosed in pursuance of a requirement imposed under section 9 above, or

(b) a party fails to comply with such a requirement,

the judge or, with the leave of the judge, any other party may make such comment as appears to the judge or the other party (as the case may be) to be appropriate and the jury may draw such inference as appears proper.
(3) In deciding whether to give leave the judge shall have regard—

(a) to the extent of the departure or failure, and

(b) to whether there was any justification for it.

(4) Except as provided by this section no part—

(a) of a statement given under section 9(5) above, or

(b) of any other information relating to the case for the accused or, if there is more than one, the case for any of them, which was given in pursuance of a requirement imposed under section 9 above,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused concerned."
Reporting restrictions
6. The following sections shall be substituted for section 11 (reporting restrictions)—
"Restrictions on reporting.
11 .—(1) Except as provided by this section—

(a) no written report of proceedings falling within subsection (2) below shall be published in Great Britain;

(b) no report of proceedings falling within subsection (2) below shall be included in a relevant programme for reception in Great Britain.

(2) The following proceedings fall within this subsection—

(a) an application under section 6(1) above;

(b) a preparatory hearing;

(c) an application for leave to appeal in relation to such a hearing;

(d) an appeal in relation to such a hearing.

(3) The judge dealing with an application under section 6(1) above may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of the application.
(4) The judge dealing with a preparatory hearing may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a) the preparatory hearing, or

103

(b) an application to the judge for leave to appeal to the Court of Appeal under section 9(11) above in relation to the preparatory hearing.

(5) The Court of Appeal may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to the Court of Appeal under section 9(11) above in relation to a preparatory hearing,

(b) an application to that Court for leave to appeal to it under section 9(11) above in relation to a preparatory hearing, or

(c) an application to that Court for leave to appeal to the House of Lords under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing.

(6) The House of Lords may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to that House under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing, or

(b) an application to that House for leave to appeal to it under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing.

(7) Where there is only one accused and he objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.
(8) Where there are two or more accused and one or more of them objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.
(9) Subsection (1) above does not apply to—

(a) the publication of a report of an application under section 6(1) above, or

(b) the inclusion in a relevant programme of a report of an application under section 6(1) above,

where the application is successful.
(10) Where—

(a) two or more persons are jointly charged, and

(b) applications under section 6(1) above are made by more than one of them,

subsection (9) above shall have effect as if for the words "the application is" there were substituted "all the applications are".
(11) Subsection (1) above does not apply to—

(a) the publication of a report of an unsuccessful application made under section 6(1) above,

(b) the publication of a report of a preparatory hearing,

(c) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

(d) the inclusion in a relevant programme of a report of an unsuccessful application made under section 6(1) above,

(e) the inclusion in a relevant programme of a report of a preparatory hearing, or

(f) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

at the conclusion of the trial of the accused or of the last of the accused to be tried.
(12) Subsection (1) above does not apply to a report which contains only one or more of the following matters—

(a) the identity of the court and the name of the judge;

(b) the names, ages, home addresses and occupations of the accused and witnesses;

(c) any relevant business information;

(d) the offence or offences, or a summary of them, with which the accused is or are charged;

(e) the names of counsel and solicitors in the proceedings;

(f) where the proceedings are adjourned, the date and place to which they are adjourned;

(g) any arrangements as to bail;

(h) whether legal aid was granted to the accused or any of the accused.

(13) The addresses that may be published or included in a relevant programme under subsection (12) above are addresses—

(a) at any relevant time, and

(b) at the time of their publication or inclusion in a relevant programme;

and "relevant time" here means a time when events giving rise to the charges to which the proceedings relate occurred.
(14) The following is relevant business information for the purposes of subsection (12) above—

(a) any address used by the accused for carrying on a business on his own account;

(b) the name of any business which he was carrying on on his own account at any relevant time;

(c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;

(d) the address of any such firm;

(e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;

(f) the address of the registered or principal office of any such company;

(g) any working address of the accused in his capacity as a person engaged by any such company;

and here "engaged" means engaged under a contract of service or a contract for services, and "relevant time" has the same meaning as in subsection (13) above.
(15) Nothing in this section affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.
(16) In this section—

(a) "publish", in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;

(b) expressions cognate with "publish" shall be construed accordingly;

(c) "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.

Offences in connection with reporting.
11A.—(1) If a report is published or included in a relevant programme in contravention of section 11 above each of the following persons is guilty of an offence—

(a) in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;

(b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;

(c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
(3) Proceedings for an offence under this section shall not he instituted in England and Wales otherwise than by or with the consent of the Attorney General.
(4) Subsection (16) of section 11 above applies for the purposes of this section as it applies for the purposes of that."
General.
7.—(1) This Schedule applies in relation to an offence if—

(a) proceedings for the trial on the charge concerned are transferred to the Crown Court on or after the appointed day. or

(b) a bill of indictment relating to the offence is preferred on or after the appointed day 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).

(2) References in this paragraph to the appointed day are to such day as is appointed for the purposes of this Schedule by the Secretary of State by order.").
The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 114. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Modifications for Northern Ireland]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 124 to 141.
Page 37, line 22, at end insert —
( ) paragraph 7 of the Schedule to the War Crimes Act 1991; or").
Page 37, leave out lines 27 to 37 and insert—
(""(1) This Part applies where a person is charged with an offence, the court proceeds to deal summarily with the charge and that person pleads not guilty.
(2) This Part also applies where—

(a) a person is charged with an indictable offence and —

(i) he is committed for trial on the charge concerned; or

(ii) a notice of transfer relating to the charge is given to the court;

(b) a count charging a person with a summary offence is included in an indictment under the authority of Article 193A of the Road Traffic (Northern Ireland) Order 1981 (offences relating to drink or drugs), or

(c) an indictment charging a person with an indictable offence is presented under the authority of section 2(2)(c), (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969.

(2A) In subsection (2)—

"indictable offence" means an offence which is triable on indictment, whether it is exclusively so triable or not;

"summary offence" has the same meaning as in Article 193A of the Road Traffic (Northern Ireland) Order 1981."").

Page 37. line 46, at end insert ("paragraph 10 of the Schedule to the War Crimes Act 1991 or").
Page 37, line 48, at end insert ("or
(c) section 1(2)(c) applies and the prosecutor has served on the accused a copy of the set of documents containing the evidence which is the basis of the charge.").
Page 38, leave out lines 11 to 13.
Page 38, leave out lines 21 to 23 and insert—
("8. In section 14(3) for paragraphs (b) to (d) substitute—

"(b) the accused is committed for trial or the notice of transfer is given (where this Part applies by virtue of section 1(2)(a)),

(c) the count is included in the indictment (where this Part applies by virtue of section 1(2)(b)), or

(d) the indictment is presented (where this Part applies by virtue of section 1(2)(c))".").

Page 38, line 26, leave out from first ("a") to ("takes") in line 27 and insert ("hearing is a pre-trial hearing if it relates to a trial on indictment and it").
Page 38, line 30, at end insert—
("(1A) For the purposes of this Part a hearing is also a pre-trial hearing if

(a) it relates to a trial on indictment to be held in pursuance of an indictment presented under the authority of section 2(2)(c). (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969, and

(b) it takes place after the indictment has been presented and before the start of the trial.").

Page 39, leave out lines 2 to 4 and insert—
("12. In section 44(6) omit paragraph (b) and in paragraph (c) for "section 1 of the Perjury Act 1911" substitute "Article 3 of the Perjury (Northern Ireland) Order 1979".").
Page 39, leave out lines 17 to 19 and insert—
("15.—(1) In section 48(1) omit paragraph (b) and the word "or" immediately before it.
(2) In section 48(11) omit paragraph (b).
15A. In section (Restriction on reporting of assertions)(1) for "Great Britain" where it twice occurs substitute "Northern Ireland".").
Page 39, line 19, at end insert—
(". In section (Television links and video recordings) for subsections (1) and (2) substitute—
"(1) In Article 81 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (evidence through television links) the following paragraphs shall be inserted after paragraph (3) —
"(3A) Where the court gives leave under paragraph (2) for a witness falling within paragraph (1)(b)(ii) to give evidence through a live television link, then, subject to paragraph (3B), the witness concerned may not give evidence otherwise than through a live television link.
(3B) In a case falling within paragraph (3A) the court may give permission for the witness to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.
(3C) Permission may be given under paragraph (3B)—

(a) on an application by a party to the case, or

(b) of the court's own motion;

but no application may be made under sub-paragraph (a) unless there has been a material change of circumstances since the leave was given under paragraph (2)."
(2) In Article 81A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (video recordings of testimony from child witnesses) the following paragraphs shall be inserted after paragraph (6)—
"(6A) Where the court gives leave under paragraph (2) the child witness shall not give relevant evidence (within the meaning given by paragraph (6D)) otherwise than by means of the video recording; but this is subject to paragraph (6B).
(6B) In a case falling within paragraph (6A) the court may give permission for the child witness to give relevant evidence (within the meaning given by paragraph (6D)) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.
(6C) Permission may be given under paragraph (6B)—

(a) on an application by a party to the case, or

(b) of the court's own motion;

but no application may be made under sub-paragraph (a) unless there has been a material change of circumstances since the leave was given under paragraph (2).
(6D) For the purposes of paragraphs (6A) and (6B) evidence is relevant evidence if—

(a) it is evidence in chief on behalf of the party who tendered the video recording, and

(b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under paragraph (3).".").

Page 39, line 19, at end insert—
(".—(1) In section (Alibi) for subsection (1) substitute—

"(1) The Evidence of Alibi Act (Northern Ireland) 1972 shall cease to have effect."

(2) In section (Alibi) omit subsections (2) and (3).

(3) In section (Alibi) for subsection (4) substitute—

"(4) In Article 8(6) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (disclosure in cases involving fraud) in sub-paragraph (a) for the words "section 1 of the Evidence of Alibi Act (Northern Ireland) 1972" there shall be substituted the words "section 5(5) of the Criminal Procedure and Investigations Act 1996".").

Page 39, leave out line 20 and insert—
("16. In section 52(1) for "sections 42(3) and 44(7)" substitute "section 44(7)".").
Page 39, line 21, at end insert—
("17A. For Schedule (Fraud) substitute—
"SCHEDULE
FRAUD
Introduction
1. The Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 shall be amended as provided by this Schedule.
Notice of transfer
2. In Article 3 (transfer of certain fraud cases to the Crown Court) in paragraph (1)(b)(ii) for the words "seriousness and complexity" there shall be substituted the words "seriousness or complexity".
Preparatory hearings
3.—(1) Article 6 (power to order preparatory hearing) shall be amended as follows.
(2) In paragraph (1) for the words "seriousness and complexity" there shall be substituted the words "seriousness or complexity".
(3) Paragraphs (3) to (5) (power to make order that could be made at the hearing) shall be omitted.
4.—(1) Article 8 (the preparatory hearing) shall be amended as follows.
(2) In paragraph (7) (warning of possible consequence under Article 9(1)) the word "(1)" shall be omitted.
(3) In paragraph (10) for the words "at or for the purposes of a preparatory hearing" there shall be substituted "under this Article".
5. The following Article shall be inserted after Article 8—
"Orders before preparatory hearing
8A.—(1) Paragraph (2) applies where—

(a) a judge orders a preparatory hearing, and

(b) he decides that any order which could be made under Article 8(4) or (5) at the hearing should be made before the hearing.

(2) In such a case—

(a) he may make any such order before the hearing (or at the hearing), and

(b) paragraphs (4) to (10) of Article 8 shall apply accordingly."

6. The following Article shall be substituted for Article 9 (later stages of trial)—
"Later stages of trial
9.—(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under Article 8.
(2) Where—

(a) a party departs from the case he disclosed in pursuance of a requirement imposed under Article 8, or

(b) a party fails to comply with such a requirement,

the judge or, with the leave of the judge, any other party may make such comment as appears to the judge or the other party (as the case may be) to be appropriate and the jury may draw such inference as appears proper.
(3) In deciding whether to give leave the judge shall have regard—

(a) to the extent of the departure or failure, and

(b) to whether there was any justification for it

(4) Except as provided by this Article no part—

(a) of a statement given under Article 8(5), or

(b) of any other information relating to the case for the accused or, if there is more than one, the case for any of them, which was given in pursuance of a requirement imposed under Article 8,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused concerned."
Reporting restrictions
7. The following Articles shall be substituted for Article 10 (reporting restrictions)—
"Restrictions on reporting
10.—(1) Except as provided by this Article—

(a) no written report of proceedings falling within paragraph (2) shall be published in Northern Ireland;

(b) no report of proceedings falling within paragraph (2) shall be included in a relevant programme for reception in Northern Ireland.

(2) The following proceedings fall within this paragraph—

(a) an application under Article 5(1);

(b) a preparatory hearing;

(c) an application for leave to appeal in relation to such a hearing;

(d) an appeal in relation to such a hearing.

(3) The judge dealing with an application under Article 5(1) may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of the application.
(4) The judge dealing with a preparatory hearing may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) the preparatory hearing, or

(b) an application to the judge for leave to appeal to the Court of Appeal under Article 8(11) in relation to the preparatory hearing.

(5) The Court of Appeal may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to the Court of Appeal under Article 8(11) in relation to a preparatory hearing,

(b) an application to that Court for leave to appeal to it under Article 8(11) in relation to a preparatory hearing, or

(c) an application to that Court for leave to appeal to the House of Lords under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing.

(6) The House of Lords may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to that House under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing, or

(b) an application to that House for leave to appeal to it under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing.

(7) Where there is only one accused and he objects to the making of an order under paragraph (3), (4), (5) or (6) the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall riot apply to the extent that a report deals with any such objection or representations.
(8) Where there are two or more accused and one or more of them objects to the making of an order under paragraph (3), (4), (5) or (6) the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.
(9) Paragraph (1) does not apply to—

(a) the publication of a report of an application under Article 5(1), or

(b) the inclusion in a relevant programme of a report of an application under Article 5(1),

where the application is successful.
(10) Where—

(a) two or more persons are jointly charged, and

(b) applications under Article 5(1) are made by more than one of them,

paragraph (9) shall have effect as if for the words "the application is" there were substituted "all the applications are".
(11) Paragraph (1) does not apply to—

(a) the publication of a report of an unsuccessful application made under Article 5(1),

(b) the publication of a report of a preparatory hearing,

(c) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

(d) the inclusion in a relevant programme of a report of an unsuccessful application made under Article 5(1),

(e) the inclusion in a relevant programme of a report of a preparatory hearing, or

(f) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

at the conclusion of the trial of the accused or of the last of the accused to be tried.
(12) Paragraph (1) does not apply to a report which contains only one or more of the following matters—

(a) the identity of the court and the name of the judge;

(b) the names, ages, home addresses and occupations of the accused and witnesses;

(c) any relevant business information;

(d) the offence or offences, or a summary of them, with which the accused is or are charged;

(e) the names of counsel and solicitors in the proceedings;

(f) where the proceedings are adjourned, the date and place to which they are adjourned;

(g) any arrangements as to bail;

(h) whether legal aid was granted to the accused or any of the accused.

(13) The addresses that may be published or included in a relevant programme under paragraph (12) are addresses—

(a) at any relevant time, and

(b) at the time of their publication or inclusion in a relevant programme;

and "relevant time" here means a time when events giving rise to the charges to which the proceedings relate occurred.
(14) The following is relevant business information for the purposes of paragraph (12)—

(a) any address used by the accused for carrying on a business on his own account;

(b) the name of any business which he was carrying on on his own account at any relevant time;

(c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;

(d) the address of any such firm;

(e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;

(f) the address of the registered or principal office of any such company;

(g) any working address of the accused in his capacity as a person engaged by any such company;

and here "engaged" means engaged under a contract of service or a contract for services, and "relevant time" has the same meaning as in paragraph (13).
(15) Nothing in this Article affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.
(16) In this Article—

(a) "publish", in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;

(b) expressions cognate with "publish" shall be construed accordingly;

(c) "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.

Offences in connection with reporting
10A.—(1) If a report is published or included in a relevant programme in contravention of Article 10 each of the following persons is guilty of an offence—

(a) in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;

(b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;

(c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2) A person guilty of an offence under this Article is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
(3) Proceedings for an offence under this Article shall not be instituted otherwise than by or with the consent of the Attorney General for Northern Ireland.
(4) Paragraph (16) of Article 10 applies for the purposes of this Article as it applies for the purposes of that."
General
8.—(1) This Schedule applies in relation to an offence if—

(a) the accused is committed for trial on the charge concerned, or proceedings for the trial on the charge concerned are transferred to the Crown Court, on or after the appointed day, or

(b) an indictment relating to the offence is presented on or after the appointed day under the authority of section 2(2)(c), (e) or (1) of the Grand Jury (Abolition) Act (Northern Ireland) 1969.

(2) References in this paragraph to the appointed day are to such day as is appointed for the purposes of this Schedule by the Secretary of State by order.").
Page 39, line 24, at end insert—
(" 1. ALIBI ").
Page 39, line 35, at end insert—

("1995 NI 3.

The Children's Evidence (Northern Ireland) Order 1995.

In Schedule 2, paragraph 6.").

Page 39, line 36, leave out ("1(3)") and insert ("(Alibi)").
Page 39, line 36, at end insert—
(" 2. FRAUD

Chapter or number

Short title

Extent of repeal

1988 NI 16.

The Criminal Justice Article 6(3) to (5). (Serious Fraud)(Northern Ireland) Order 1988.

Article 6(3) to (5)

In Article 8(7) the word "(1)".

1990 c. 42.

The Broadcasting Act 1990.

In Schedule 20, paragraph 50.

These repeals have effect in accordance with Schedule (Fraud) to this Act.").
The noble and learned Lord said: My Lords, all these amendments concern the application of the Bill to Northern Ireland. They amend Schedule 2, which in turn modifies the way the Bill operates in relation to Northern Ireland, taking account of the different statutory framework there. For the most part, the amendments correspond entirely in their purpose to those already approved by your Lordships' House in respect of England and Wales. Unless your Lordships wish to raise particular points, I do not wish to detain the House by seeking to explain them in detail.
However, I should draw attention to paragraphs 2 and 3(2) of the schedule relating to fraud in Northern Ireland. It is proposed to substitute this for the schedule
112
that your Lordships have already approved in respect of England and Wales. It is largely to the same effect, but it also widens the scope of the provisions on notices of transfer and preparatory hearings by permitting them to be held in any case of fraud of sufficient seriousness or complexity. The criterion at present is "seriousness and complexity". Similar amendments, which follow a recommendation of the Royal Commission on Criminal Justice, have already been made in the England and Wales provisions of the Criminal Justice and Public Order Act 1994. I beg to move.
On Question, amendments agreed to. Schedule 3 [Repeals]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 142 and 143:
Page 40, leave out lines 3 to 11.
Page 41, line 14, at end insert—
("7. ALIBI

Chapter

Short title

Extent of repeal

1967 c. 80.

Criminal Justice Act 1967

Section 11.

1980 c. 43.

Magistrates' Courts Act 1980.

In Schedule 7, paragraph 64.

1987 c. 38.

Criminal Justice Act 1987

In Schedule 2,paragraph 2.

1994 c. 33.

Criminal Justice and Public Order Act 1994.

In Schedule 4, paragraph 15(3). In Schedule 9, paragraphs 6(2) and 7.

These repeals have effect in accordance with section (Alibi) of this Act.").
The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 140. I beg to move.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 144:
Page 41, line 14, at end insert—
("8. FRAUD

Chapter

Short title

Extent of repeal

1987 c.38.

Criminal Justice Act 1987.

In section 7,subsections (3) to (5).

In section 9(7), the word "(1)".

1988 c.33.

Criminal Justice Act 1988.

In Schedule 15, paragraph 114.

1990 c.42.

Broadcasting Act 1990.

In Schedule 20, paragraph 47.")

These repeals have effect in accordance with Schedule (Fraud) to this Act.").
On Question, amendment agreed to.
House adjourned at thirteen minutes past nine o'clock.