Criminal Procedure and Investigations Bill [H.L.]

HL Deb 19 February 1996 vol 569 cc865-912

3.8 p.m.

Read a third time.

Clause 2 [General interpretation]:

Lord McIntosh of Haringey moved Amendment No. 1: Page 2, line 21, at end insert— ("( ) References to material which might undermine the case for the prosecution are to material which may cast doubt upon the prosecution case.").

The noble Lord said: My Lords, the House will be aware that throughout our consideration of this Bill one of our most important concerns has been the adequacy of the definition of the primary disclosure by the prosecutor to the defence which will in turn trigger disclosure by the defence, both of which were recommendations of the Royal Commission on Criminal Justice.

We have been very dissatisfied with the definition used in Clause 3(1)(a), which states: The prosecutor must— (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused".

We have attempted by arguments in Committee and on Report to suggest an alternative wording to that subsection. We have not succeeded in getting the support of the Government (and therefore of the Government's troops) for any changes of that kind. So we are adopting a different tack today. In Amendment No. 1 we propose to add a definition of "undermine" to the subsection in Clause 2 which deals with definitions. The definition we propose is that "undermine" should be a reference to: material which may cast doubt upon the prosecution case".

I believe that it will be agreed that in the English language "to cast doubt" on something is rather less demanding than "to undermine the case".

"Undermine" is a curious metaphor in any case to find in legislation. It is a metaphor from mining engineering, which one might say has no particular place in legislation in the first place. We are encouraged to include it because the Home Office itself, in discussions with the Law Society, has said that by "undermine" it means cast doubt upon. It is important that we should have a rather less rigid and prescriptive definition of the basis upon which the prosecution should disclose information to the defence, because we are worried, and have been worried throughout consideration of the Bill, that too much of a burden is being placed on the prosecutor in selecting what material should go to the defence.

The Government, throughout the Bill, from Second Reading onwards, have argued that one of the principle justifications for the Bill, and for the departure from the recommendations of the Royal Commission and from judge-made law—practical judgments made in courts since the Royal Commission's report—is that at present there is too much of a burden on the prosecution.

Those who have been seeking to persuade me of their case in this matter have been the Criminal Bar Association and the Law Society. They are both convinced—and their views should be listened to—that it is the selection rather than the supply of a bundle of unused material which is in fact the real burden on the prosecution, and that if the prosecution were not to assume the role of deciding on behalf of the defence what may be relevant, we might achieve a better balance between defence and prosecution, and we might in fact reduce the burden on the prosecution.

As I have said, we have taken the wording of the amendment from the indications which have already been given by the Home Office in discussion with the Law Society. The slight difference in emphasis provided by the phrase "cast doubt upon" rather than "to undermine" will go a small but significant and useful way towards reducing the burden on the prosecution and improving the balance between the powers of the prosecution and those of the defence. I beg to move.

3.15 p.m.

Lord Renton

My Lords, I shall be interested to hear what my noble friend the Minister says in answer to the amendment. It deserves careful consideration because, speaking from my own recollection which noble Lords may think is now becoming rather rusty, I do not recollect the word "undermine" being used in the law of evidence or in relation to the burden of proof in criminal cases. It may be that that does not matter greatly; it may be that when the matters dealt with in the early clauses of the Bill come before the courts, the courts will have no difficulty in understanding what is meant by the word "undermine". Having said that, it is necessary that we should get as near as possible to the terms of art already in use rather than introduce a new one.

Baroness Blatch

My Lords, the noble Lord explained his concern that the test for primary prosecution disclosure may be too restrictive. I hope to be able to convince him, and my noble friend Lord Renton, and to be able to allay their concerns.

The Government have given considerable thought to the test for primary prosecution disclosure. We want to ensure that the prosecutor discloses at the first stage material which, generally speaking, has an adverse effect on the strength of the prosecution case.

Let me give two examples of the kind of material we have in mind. The first is a witness statement containing a description of the alleged offender which is different from the description of the accused. The second is a psychiatric report showing that the main prosecution witness has a history of psychiatric disorder with a tendency to fantasize. In both cases the material should as a matter of principle and of law be disclosed to the accused.

The test of "undermine the prosecution case" is wide enough to require the disclosure of material such as I have described. It is the test which we used in the consultation paper on disclosure which we issued last May. A wide range of organisations responded to the consultation paper and none of them suggested replacing "undermine" with an alternative such as "cast doubt upon".

The noble Lord is concerned that the test of "undermine the prosecution case" could be interpreted in a restrictive way so that all that had to be disclosed was material which removed the foundations of the prosecution case. But the test extends to any material which might undermine the prosecution case. It is not confined to material raising a fundamental question about the prosecution. In that event, it surely is unlikely that the prosecutor would proceed with the case. Guilt must be proved beyond reasonable doubt, and, as the Code for Crown Prosecutors makes clear, the prosecutor may not bring proceedings unless there is a realistic prospect of conviction. The disclosure scheme is aimed at undisclosed material which might help the accused, notwithstanding that there is enough evidence to provide a realistic prospect of conviction.

I turn now to the alternative formulation suggested by the noble Lord. It, too, would require the disclosure of the kind of material I have described. But it would go further than that. It could, for example, cover material which slightly weakened a peripheral aspect of the prosecution case without having any real effect on it. Such a test would be rather closer to the existing test for prosecution disclosure, which, as I have explained in previous proceedings on the Bill, does not focus on the real issues in dispute in the case; and which, as has been widely recognised, creates great difficulties in practice. In the light of my response, I hope that the amendment will not be pressed.

Lord Renton

My Lords, before my noble friend sits down, I wonder whether I have understood her properly. I understand her argument to be that when the word "undermine" is used, it in no way interferes with the burden of proof on the prosecution to prove the case against the accused beyond reasonable doubt.

Baroness Blatch

My Lords, I can give my noble friend an absolute assurance on that point.

Lord McIntosh of Haringey

My Lords, I am relieved that, having undergone the scrutiny of officials in the Home Office, my amendment means what I intended it to mean, which is, indeed, to widen the basis upon which material should be released to the defence. I am so often told by lawyers that because of my ignorance of the details of these matters the things I suggest would not in fact have the effect that I intended. I still find it strange—and I am glad to have the noble Lord, Lord Renton, with me—that we should use such a term as "undermine", which is an engineering term—to be precise, it is a military engineering term, is it not?—in legislation of this kind.

We are talking about casting doubt on the prosecution case. My wording avoids the trap of metaphor and the trap into which the Government have fallen by their desire to select more rigidly the information which has to be disclosed. But I recognise that we are in danger of arguing about how many angels could dance on the head of a pin. I am afraid that unless the wording in the Bill is changed, it will lead to some of the miscarriages of justice which the setting up of the Royal Commission was intended to avoid. I believe that the balance of the Bill as drafted is tilted in the wrong direction. However, I do not believe that the difference between us is so great that I would be justified in seeking the opinion of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Primary disclosure by prosecutor]:

Lord Williams of Mostyn moved Amendment No. 2: Page 2, line 27, after ("prosecutor's") insert ("reasonable").

The noble Lord said: My Lords, when this minor amendment was tabled on the previous occasion there was a significant amount of discussion. Clause 3 lays upon the prosecutor the duty and the burden of disclosing to the accused any prosecution material which has not previously been disclosed and which, in the prosecutor's opinion, might undermine the case for the prosecution.

When the matter was before the House on the previous occasion a number of your Lordships supported our case that this was an improvement. The context in which we discussed the matter was that many recent miscarriages of justice have arisen, as the Government well recognise in the scheme of their Bill, by virtue of non-disclosure. The criticism mounted against the present draft was that the prosecutor's opinion is left as being subjective and not subject to the objective test as to whether the prosecutor's opinion was reasonable.

On the previous occasion I was fortified by support from the noble Lords, Lord Renton and Lord Campbell of Alloway, the noble Viscount, Lord Bledisloe, and, not least, from the noble Viscount, Lord Runciman, whose commission did such sterling work in dealing with the problems. On that occasion I heard nothing convincing, or reasonably convincing, as to why the amendment was not properly seen as an improvement. I ask the Government, they having reflected in the meantime, to accept the amendment as an improvement to the present draft form. I beg to move.

Lord Ackner

My Lords, I support the amendment. I am surprised that two words have been used which are, or should be, unnecessary. The sentence should read: which might undermine the case". The phrase "prosecutor's opinion" is surplusage because the test, if it is sound, is bound to be objective. Therefore, it needs no reference to the prosecutor.

However, since the draftsman has sought to include "prosecutor" his opinion must be characterised by "reasonable", otherwise it is subjective and one will have the answer made for non-disclosure, "I honestly believed that this would not undermine", even though it is apparent to any reasonable person that it would. If the draftsman insists that "prosecutor" should be included, the opinion of the prosecutor must be characterised by the word "reasonable".

Lord Renton

My Lords, with respect to the noble and learned Lord, whose case I well understand because he put it so clearly, I should have thought that the view he expressed would be better met if the words "in the prosecutor's opinion" were left out rather than adding the word "reasonable".

Lord Ackner

Lords, I believe that it is my fault for not being as clear as my noble friend suggested. I wanted those words left out but if they are included the qualification "reasonable" must accompany "the prosecutor's opinion".

Lord Boyd-Carpenter

My Lords, I support those who criticise the clause as it stands. Although other amendments might be better, given that we are at Third Reading I offer my support of the amendment now in front of us. I hope that my noble friend the Minister will be prepared to accept it.

Lord Carlisle of Bucklow

My Lords, although I have not taken part in or been present during earlier stages of the Bill, perhaps I may support what was said by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Williams. Clearly, if one is to have a test it should be objective rather than subjective. While I totally agree that the number of papers now being required to be disclosed by the prosecution have become totally unreasonable, we must be careful that in bringing in this legislation we do not tilt the balance too far the other way.

Baroness Blatch

My Lords, as the noble Lord explained, the House debated similar amendments in Committee and on Report. As my noble friend Lord Boyd-Carpenter suggested, this is not the stage to be considering on the Floor of the House alternatives to the present amendment.

I have reflected on the points which were made in those debates. I have to say that I still take the view that Clause 3 should remain as it is. As I have previously explained, the Bill clearly places the prosecutor under certain duties of disclosure. In discharging those duties the prosecutor will have to bear in mind his duty to secure a fair trial. Prosecuting counsel, for example, are bound by the Bar's code of conduct which sets out that: Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the court on all matters of law applicable to the case. The code for Crown prosecutors provides that: Fair and effective prosecution is essential to the maintenance of law and order". And also: The duty of the CPS is to make sure … that all relevant facts are given to the court … Court Prosecutors must be fair. In considering what material is required to be disclosed to the accused the prosecutor will bring his best judgment to bear and, as I said, he will have to keep in mind these duties.

The amendment would require him to consider what a prosecutor's reasonable opinion might be and not just, as the Bill does now, what is his opinion. But, again as I have explained, the prosecutor will surely assume that his opinion is a reasonable opinion. I do not see how he could think otherwise, particularly since he is acting in a professional capacity and discharging duties prescribed by statute. I do not think that in practice, therefore, the amendments would achieve any improvement in the way the disclosure regime operates.

Lord Ackner:

My Lords, before the noble Baroness sits down, does she accept that under the clause as drafted the prosecutor will have performed his duty if he honestly but unreasonably fails to produce the material?

Baroness Blatch

My Lords, certainly the prosecutor would have to be honest. If he were not honest he would have other problems; certainly he would be in breach of his own codes and could be contributing to an unsafe conviction. I am not sure that the point raised by the noble and learned Lord is appropriate in this case. If the prosecutor were inadvertently unreasonable—I believe that the noble and learned Lord is suggesting that he may be acting incompetently—that could be a contributory factor and could be challenged later on conviction.

Boyd-Carpenter

My Lords, before my noble friend finally sits down, in the circumstances is not a "reasonable" opinion exactly what is wanted? What harm could possibly be done by inserting the word at this stage?

Baroness Blatch

My Lords, the difference between us is that the prosecutor must act reasonably. He is not free to act unreasonably. During the course of his work he must, under a number of codes, act fairly, justly and reasonably. It seems unreasonable even to suggest the notion that one must put in statute that the prosecutor must act reasonably.

I remain of the view personally—as well as having been advised to advocate the view—that this is an unacceptable amendment. I invite the noble Lord not to press the amendment but, in view of the debate that we have had, I should like to reflect on the other points that have been made about the drafting. If the noble Lord is prepared to withdraw the amendment, then we shall reflect on the debate as a whole before the Bill goes to another place.

Lord Williams of Mostyn

My Lords, we have reflected for quite a long time. The Minister has valiantly, if I may say so, put forward a non-sustainable brief. I do not believe that she convinces any of us even on the balance of probabilities, let alone beyond reasonable doubt.

This is not a party point but is a determined effort to try to make legislation better than it is presently drafted. It is noteworthy that no one in the massed ranks which sometimes charge forward to support Home Office legislation has been able to do so. It is noteworthy also that either all or the overwhelming majority of noble Lords who have spoken are well familiar with Bar Council duties, having been subject to them, one way or another, for longer than most of us would care to reflect about.

In answer specifically to the discriminating intervention of the noble Lord, Lord Boyd-Carpenter, that these were duties laid upon the Bar and that the prosecutor would be expected to behave reasonably, in a voice that was not so sotto voce, the noble Lord said, "Exactly". That is exactly what I reasonably suggest. Therefore, I intend to test the feeling of the House.

3.32 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 114.

Division No. 1
CONTENTS
Ackner, L.	Jay of Paddington, B.
Acton, L.	Jeger, B.
Addington, L.	Jenkins of Putney, L.
Allen of Abbeydale, L.	Kinloss, Ly.
Archer of Sandwell, L.	Kirkhill, L.
Attlee, E.	Lawrence, L.
Bancroft, L.	Longford, E.
Barnett, L.	McIntosh of Haringey, L.
Berkeley, L.	McNair, L.
Borrie, L.	Mason of Barnsley, L.
Boyd-Carpenter, L.	Mayhew, L.
Brain, L.	Mishcon, L.
Bruce of Donington, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Monkswell, L.
Chester, Bp.	Morris of Castle Morris, L,
Cledwyn of Penrhos, L.	Nelson, E.
Clinton-Davis, L.	Ogmore, L.
Cocks of Hartcliffe, L	Palmer, L.
Darcy (de Knayth), B.	Ponsonby of Shulbrede, L.
David, B.	Redesdale, L.
Dean of Thornton-le-Fylde, B,[Teller]	Rodgers of Quarry Bank, L.
	Sefton of Garston, L.
Donaldson of Kingsbridge, L.	Sewel, L.
Donoughue, L	Shannon, E.
Dormand of Easington, L.	Shaughnessy, L
Dubs, L.	Shepherd, L.
Farrington of Ribbleton, B.	Sherfield, L,
Fisher of Rednal, B.	Simon, V.
Gerard, L.	Smith of Gilmorehill, B.
	Stedman, B.
Gladwin of Clee, L.	Stoddart of Swindon, L
Graham of Edmonton, L [Teller.].	Strabolgi, L.
Greenhill of Harrow, L.	Taverne, L
Grey, E	Taylor of Blackburn, L.
Halsbury, E	Thomas of Walliswood, B.
Harris of Greenwich, L.	Thomson of Monifieth, L.
Haskel, L.	Tordoff, L
Hayman, B.	Turner of Camden, B.
Henderson of Brompton, L.	White, B.
Hilton of Eggardon, B.	Williams of Elvel, L.
Hollis of Heigham, B.	Williams of Mostyn, L.
Howie of Troon, L	Winston, L
NOT CONTENTS
Aberdare, L.	Ashbourne, L
Addison, V.	Astor of Hever, L.
Ailsa, M.	Blaker, L.
Aldington, L.	Blatch, B.
Alexander of Tunis, E.	Boardman, L.
Allenby of Megiddo, V.	Brabazon of Tara, L.
Ampthill, L.	Bradford, E.
Archer of Weston-Super-Mare, L.	Braine of Wheatley, L.
Arran, E	Cadman, L.

Campbell of Croy, L.	Lucas, L.
Carnegy of Lour, B.	McConnell, L
Carnock, L	Mackay of Ardbrecknish, L.
Chelmsford, V.	Mackay of Clashfern, L. [Lord Chancellor]
Chesham, L. [Teller]
Constantine of Stanmore, L.	Mackay of Drumadoon, L.
Courtown, E.	Macleod of Borve, B.
Craig of Radley, L.	Marlesford, L.
Cranborne, V. [Lord Privy Seal]	Mersey, V.
Cuckney, L	Miller of Hendon, B.
Cullen of Ashbourne, L.	Milverton, L.
De Freyne, L.	Montgomery of Alamein, V.
Dean of Harptree, L.	Mowbray and Stourton, L.
Dixon-Smith, L.	Munster, E.
Eccles of Moulton, B.	Murton of Lindisfarne, L.
Elles, B.	Noel-Buxton, L.
Elliott of Morpeth, L.	Norfolk, D.
Erroll of Hale, L.	Norrie, L.
Faithfull, B.	Northesk, E
Ferrers, E.	Onslow, E.
Finsberg, L.	Orr-Ewing, L.
Fraser of Carmyllie, L	Oxfuird, V.
Fraser of Kilmorack, L.	Pearson of Rannoch, L.
Gainford, L	Pender, L.
Gardner of Parkes, B.	Peyton of Yeovil, L.
Gilmour of Craigmillar, L.	Pilkington of Oxenford, L.
Gisborough, L.	Pym, L.
Goold, L	Quinton, L.
Goschen, V.	Renwick, L.
Gray of Contin, L	Rippon of Hexham, L.
	St. Davids, V.
Hailsham of Saint Marylebone, L.	Saltoun of Abernethy, Ly.
Hayhoe, L.	Seccombe, B.
Henley, L	Shaw of Northstead, L
Hertford, M.	Skelmersdale, L.
Hogg, B.	Strange, B.
Holderness, L.	Strathcarron, L.
Howe, E.	Strathclyde, L. [Teller.]
Hylton-Foster, B.	Sudeley, L.
Inglewood, L.	Terrington, L
Ironside, L.	Trefgarne, L.
Jenkin of Roding, L.	Trumpington, B.
Johnston of Rockport, L.	Vaux of Harrowden, L.
Killearn, L.	Westbury, L.
Kimball, L	Whitelaw, V.
Lauderdale, E.	Wilcox, B.
Layton, L.	Wolfson, L.
Leigh, L.	Wynford, L.
Long, V.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.40 p.m.

Clause 4 [Primary disclosure: further provisions]:

Lord McIntosh of Haringey moved Amendment No. 3: Page 3, line 26, at end insert— ("( ) and, except where an issue of national security arises, the prosecutor has satisfied himself that the document includes all material except sensitive material.").

The noble Lord said: My Lords, with this amendment we return to the issue of sensitive material. Noble Lords who took part in the earlier consideration upon the Bill will remember that we were worried about a number of aspects of the definition and use of sensitive material in the disclosure process.

Our first concern was that it was the prerogative of the police, the investigator, alone to decide which material was or was not sensitive. We had some minor worries about the definition of "sensitive material". But the principal concern was that the prosecutor who has to hand over all non-sensitive material in the primary disclosure process does not have any way of satisfying himself as to which material is and is not sensitive.

The code of practice which the Government helpfully published, and which is now, of course, to be subject to statutory instrument, sets out the definition of "sensitive material". That is due to the fact that we tabled it as an amendment so that everyone could see it, apart from it being available in the Library. Noble Lords will recall that the definition is very wide indeed. It starts with matters of national security and includes such things as foreign intelligence, but it goes on to include material, for example, which is given or gathered in confidence. Indeed, there is an extremely long list of types of material which may be considered sensitive.

When we proposed that the prosecutor should have the responsibility for satisfying himself as to whether or not material was sensitive, the noble Lord, Lord Campbell of Alloway, (who we are sorry not have with us this afternoon), objected to our amendment on the grounds that, in cases of national security, prosecuting counsel might not be cleared in security terms. I did not think very much of that argument, as the noble Lord realised at the time. However, in our usual reasonable way, we have attempted to meet the objection which might be raised and to be as modest and as helpful as we possibly can in drafting our amendment.

Under the amendment, the prosecutor would still have the responsibility of judging what is and what is not sensitive, except in cases of national security. I do not believe that we can go much further than that if we are to continue to express our serious concern at the imbalance of responsibility between the police—the investigator—and the prosecution in deciding what evidence shall be disclosed at the primary disclosure stage. Therefore, we very much hope that the Government will find it possible to accept the amendment, which has been drafted not in an adversarial spirit but in a genuine effort to seek the agreement of government. We hope that it will be acceptable also to the House. I beg to move.

Lord Renton

My Lords, if I may say so, the amendment—moved with the best possible motives—contains, from the drafting point of view, something which causes me a little uncertainty. I say that because the word "except" is used twice. Not having been able to be here during the Committee stage or, indeed, on the first day of the Report stage, it is possible that I have not understood the matter as well as I should have.

However, could it be that the reference to "sensitive material" in the amendment relates to national security? I think that must be so. Therefore, in effect, by the use of the word "except" twice, the amendment gives rise to a double negative. Even though the substance of the point made by the noble Lord is sound, I must confess that I am a little worried about the drafting of the amendment.

The Lord Advocate (Lord Mackay of Drumadoon)

My Lords, since a similar—indeed, identical—amendment was before the House, the Government have given further consideration to what they perceive to be the purpose which lies behind the proposal. Undoubtedly the point raised by my noble friend Lord Campbell of Alloway about national security has been addressed to some extent. However, the Government remain of the view that, despite the amendment not being extensive in terms, it would have a dramatic effect upon the balance which has been struck in the Bill between the duties placed upon the police as investigators and the duty on the prosecutor.

On one construction, the effect of the amendment would be that the prosecutor would be under a duty to satisfy himself that the schedule setting out the non-sensitive material contained all such material which had been held by the police in connection with the investigation, whether or not it was on the schedule of sensitive material. In other words, it would require the prosecutor to go right through the material available and carry out, again, the work which had been done by the police in the discharge of their duties under the scheme which the Bill proposes. The structure of the proposal is that the police are responsible for investigating, collecting material and making it available to the prosecutors with the relevant schedules. The prosecutor is then under a duty to consider what falls to be disclosed to the accused, whether initially under primary disclosure or in the continuing duty set out very clearly under Clause 9(2) of the Bill. Those duties are separate but complementary.

I repeat what I said on the last occasion when we considered the matter. Were it to be the case that the police knew in every instance that the work they carried out to categorise material as sensitive or non-sensitive would be reviewed on that approach by the prosecutor, there is a risk that they would not accept its importance and, therefore, would not fully implement the important duty which lies upon them.

I hear the noble Lord, Lord McIntosh, saying that that is a dreadful thing to say. In response, although I accept that that comment may have had an element of jocularity about it, I must point out that anyone who has practised as part of a team, who knows that he is the junior member of it and that a senior member of the team will review the work, cannot and will not—and indeed, never does—put that thought out of his mind. Certainly, any junior counsel who knows that senior counsel is the person who will be reviewing the pleadings and ultimately defending the position in court, knows that there is that failsafe mechanism, if I may put it in those terms, lying ahead. One cannot put that out of one's mind.

I suggest to your Lordships that if the police felt that their initial assessment was merely an initial assessment which the prosecutor would have to reconsider de nouveau, they would have a similar view to the one which I described. It is important that one considers these matters as two separate but complementary responsibilities. Having reflected fully on the issues which were raised on the previous occasion, and which have been raised again today, I hope that the noble Lord will feel it possible not to press the amendment.

Lord Rodgers of Quarry Bank

My Lords, before the noble and learned Lord sits down, I hope I may ask him a question which may be an elementary one. Unlike the noble Lord, Lord Renton, who prefaced his remarks by saying he had not been present at the earlier stages of the Bill, I confess that I was here and therefore I probably have no excuse for my ignorance. The question arises from the amendment in the name of the noble Lord, Lord McIntosh. Who decides what is and is not an issue of national security? Recent experience has made plain that it is easy for those who wish to preserve secrets, or to deny the availability of documents, to argue that national security justifies that denial. It would be helpful to know who will decide and what safeguards there are as regards documents being withheld on grounds of national security which could have been made available.

Lord Mackay of Drumadoon

My Lords, on one view that question should be asked of those who tabled the amendment because it is not the Government who are suggesting that an issue of national security should be addressed at this stage. The point raised by the noble Lord is valid because were this amendment to be implemented as framed, on one view it would be the police who would take the view that a box of documents gave rise to an issue of national security. It would be for the police to say whether documents are sensitive and involve an issue of national security, and therefore the prosecutor does not have the duty which is proposed in this amendment. Whether or not that is a desirable approach is obviously another matter altogether. In the context of the Third Reading of this Bill I do not think that we wish to become embroiled in the important issues which may lie ahead. However, I suggest that one implication of accepting this amendment is that one would run into difficult territory as regards who would have the responsibility of indicating that in a particular case an issue of national security arises, and therefore whether the provisions of this amendment apply in that case.

Lord McIntosh of Haringey

My Lords, I wish to respond first to the noble Lord, Lord Renton, who queried whether the amendment contained a double negative in that the word "except" is used twice. The word is first used in the phrase, except where an issue of national security arises", and that phrase is contained within commas. I do not think therefore that, syntactically, it can be said that the two words cancel each other out in creating a double negative. If I had used the words "other than" on one occasion rather than the word "except" that might have been more elegant. However, I do not think that would have affected the meaning. Indeed the noble and learned Lord the Lord Advocate in his response did not follow up that point.

I apologise to the noble and learned Lord the Lord Advocate in that he heard what I said to my neighbour on the Front Bench. I would not have wished to make that remark directly to him from a seated position. However, as he repeated my remark, I shall repeat it too. What the noble and learned Lord said was a dreadful thing to say. It was also a dreadful thing to say on the previous occasion we discussed this Bill. On the previous occasion the noble and learned Lord the Lord Advocate said, as regards the work of the police in this area being reviewed, that that may, have the effect of lessening the importance which the police officer attaches to the obligation that is placed upon him".—[Official Report, 1/2/96; col. 1582.] I still adhere to the response that I made at Report stage. I hope the House will permit me to read out my response. I said, I think more highly of the police. I believe that they will do their job properly because it must be done properly and because the code of practice provides for that. They will do it no less properly because someone else will look at their work afterwards. In the end, the court will look at all of the work that the police have done. That does not mean that the police have any less a sense of importance about adhering to proper standards".—[Official Report, 1/2/96; col. 1583.] I feel as strongly about this issue now as I did on that occasion. The noble and learned Lord the Lord Advocate now says that the provision would have a dramatic effect on the way in which the Bill operates. I do not believe for a moment that it would have a dramatic effect. I believe that it would place the responsibility for passing material in primary disclosure to the defence where it should lie; namely, with the prosecutor, and not with the police. The whole structure of the Bill concerns primary disclosure by the prosecutor. Unless the prosecutor sees what material has been classified as sensitive and is able to make his own judgment, he is not able to fulfil his obligations under the Bill. I believe in that principle as strongly now as I did at Report stage.

The noble and learned Lord the Lord Advocate also said that the provision would put a burden on the police who would have to decide whether or not a matter was one of national security, and whether therefore it should be passed to the prosecutor. That, of course, is true, but how much less of a burden would it be than the present provision in the Bill which provides that all matters which may fall under any of the categories of sensitive material have to be adjudged as sensitive or not by the police and not in any way by the prosecutor? The argument that the police will not do their job properly because someone else is looking at their work, and, also, the argument that the provision is a burden on the police seem to me utterly unfounded. I believe that the Government are wrong on this matter and that they have misunderstood the responsibility of the prosecutor in deciding what the primary disclosure should consist of. The Government will regret that and I believe they will discover, when this Bill goes to another place, that there will be disagreement as regards the formulation in the Bill not just on the part of the Opposition but also on the part of legally qualified Members of their own party. However, we should not continue to divide on these matters at Third Reading. I shall withdraw the amendment but only because we are at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Compulsory disclosure by accused]:

Lord McIntosh of Haringey moved Amendment No. 4: Page 3, line 33, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

The noble Lord said: My Lords, in moving Amendment No. 4 I wish to speak also to Amendment No. 5. This, again, is an issue on which we have sought to persuade the Government, rather than outvote the Government—fat chance of that!—that they are making a mistake in the terms of their own intention in devising this Bill. In serious fraud cases the defence is given, in return for the disclosure which is required from it, a clear statement of the Crown case in proper form before anything is demanded of the defence. In this Bill the situation is far from clear. One has to read across from Part I of the Bill to Part II of the Bill, and to the terms of the code of practice which are not included in the Bill.

It is possible that the prosecution could serve on the defence only material which meets the narrow definition—I insist that it is a narrow definition—of undermining the prosecution's case. It is possible that the schedule of material which is to be handed over will not be explicit enough and detailed enough for the defence to be able to identify the items in the schedule, or identify—this is more important—the importance of the items in the schedule. It is only too possible that the defence, with the best will in the world, may be unable to make a proper defence disclosure unless the prosecution has made a proper case statement in the first place.

I believe that the requirement for a case statement was supported by the Royal Commission. I believe that it is in accordance with the various judgments which have taken place since then that there should be a proper case statement; and I believe that it accords with the structure of the Bill—which is admittedly somewhat elaborate and clumsy, involving toing and froing—which will only be made to work if there is a proper case statement in the first place.

The arguments for having a case statement should not arouse the kind of antagonism which they have aroused in the past. Inevitably, if the prosecution is in a position to require a defence disclosure and therefore to make its primary disclosure, it will have made serious progress towards a case statement. The only difference here is not that the case statement should be prepared but that it should be disclosed before the disclosure process starts. I cannot see how it can possibly be argued that that will result in a longer or more difficult process of disclosure, any delay to the trial or any further burden on the prosecution. We say not that the prosecution should have to do more but that it should have to act earlier in the process and openly. I am convinced that that is in the interests of justice. I beg to move.

4 p.m.

Lord Renton

My Lords, if the words of Amendment No. 5 are to be included in the Bill Clause 5 is not the place to put them. I invite the attention of noble Lords to the fact that primary disclosure by the prosecution is covered by Clause 3. Clause 4 relates to "Primary disclosure: further provisions", and Clause 5 deals with "Compulsory disclosure by accused". That clause elaborates on the obligations of the prosecution in Clause 3. I find it very strange that Amendment No. 5 should be tacked on as an afterthought when we are dealing with compulsory disclosure by the accused.

In any event, the amendment requires careful consideration. The matters which the prosecution has to deal with under subsection (2B) (d) include, any proposition of law on which the prosecution proposes to rely".

That is fair enough, but when that has been stated in other legislation an exception has been made for any reply which the prosecution makes to a point of law raised by the defence. I believe that the proposal needs qualification of that kind.

Paragraph (e) of the amendment refers to: the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d)". The only consequence can be the prosecution's intention to aim at a conviction. I do not see the point of having paragraph (e) at all.

However, as I said, I believe that the amendment is flawed by being in the wrong place in the Bill, whatever its merits.

Lord Boyd-Carpenter

My Lords, I should like to support my noble friend Lord Renton in relation to his point concerning paragraph (e) of Amendment No. 5. The words, the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d) seem to me to put forward a most extraordinary proposition. I do not know whether it is intended to be an argument at considerable length in favour of the proposition that the accused is guilty or whether it should be simply an analysis of the possible effects of paragraphs (a) to (d). I believe that it would cause a great deal of difficulty and misunderstanding. As at present advised, I should certainly be against including it in the Bill.

Lord Ackner

My Lords, as I have in the past, I support the principle that if one expects the defence to provide more than a mere label to its defence such as "mistake", "provocation" or whatever it may be, and to provide the material which the Bill obliges it to provide, then the Government are ill-advised not to provide the defence with a clear statement of the prosecution case. It is just like civil litigation: unless there is a detailed statement of claim one cannot expect to require the defendant to put in a detailed defence.

The amendment is in error in that it goes too far. One does not want to make this situation analogous to the complex types of case for which there are special provisions. One wants to be stated what is set out in subsection (2B) (a); namely, the principal facts of the case for the prosecution", so that a story is told which the defence has to deal with. The defence should be entitled to know any inferences which the prosecution seeks to draw from those facts. That is all. That should impose on the prosecution a very light burden. The prosecution must know what its case is; it has been the subject matter of some report before the prosecution was launched. It must therefore be in a position to tell the story to the accused so that he may put in his answer.

I hope that the Government, perhaps at a later stage in another place, will consider the wisdom, which will redound to the advantage of the prosecution, of providing the defence with a detailed account of what the defence has to meet so as to be able to see how the defence proposes so to do.

Viscount Runciman of Doxford

My Lords, not for the first time in discussions in this House on this Bill, I should like heartily to support the remarks of the noble and learned Lord, Lord Ackner, which, I am pleased to say, I arrived just in time to hear. I echo his hope that the matter may be considered further by the Government in another place.

Lord Mackay of Drumadoon

My Lords, in rising to oppose the amendment I shall deal first with the contributions made by my noble friends Lord Renton and Lord Boyd-Carpenter. They serve to illustrate the point that I sought to make on the previous occasion that the proposal is nothing like as straightforward or lacking in consequences in terms of the burden that it would place on the prosecution as those who support it suggest.

I have carefully considered the issue since the matter was last before your Lordships, not least because of my own experience of prosecution, which does not require giving notice to the accused in advance of the case in anything like the detail and volume of information which applies in this jurisdiction. I am in a position to assure the House that the matter has been considered carefully, not only by those who advise me but also by myself. Having said that, I remain of the view that it is unnecessary to proceed with the amendment in the limited form which may appeal to those who contributed to the debate.

It is important to bear in mind what is done when a case is transferred to the Crown Court for trial. As noble Lords know, the prosecutor is required to serve a great deal of specified information about a case, including a set of documents containing the evidence on which the charges are framed. In two special kinds of case (serious or complex fraud, and certain cases involving violent or sexual offences), the information will be a copy of the documents containing the evidence to which a notice of transfer has been given.

It cannot be denied that that information provides a full account of the evidential material on which the prosecution intends to rely. I venture to suggest that, when that information is read, the story which the noble and learned Lord, Lord Ackner, wishes to have told is there to be read. A person who is charged with the defence of a man and provided with all that evidential material would not look at the summary of the story as set out in the prosecution case statement under the terms of subsection (2)(a), (b) or (c). He would look at all the available case papers before seeking to explain the accused's position under the later parts of Clause 5.

Some information was placed before your Lordships' House at an earlier stage as to the likely consequences for the Crown Prosecution Service were an amendment to be accepted. As I recollect, the figure mentioned was some £4.5 million per annum. Further information has been considered as regards how that sum was estimated. In the last full year available, the costs were calculated in relation to the number of defendants who had been sent to the Crown Court for trial. I am in a position to assure noble Lords that considerable sums of money would be involved. However, more importantly, it would involve the prosecutors preparing a document at a comparatively early stage in the case when, on one view, their efforts would be better geared to discharging the responsibilities with regard to disclosure.

The more one considers the provisions of the amendment relating to propositions of law or consequences, the more premature it seems for the prosecutor to be setting out at that stage what his position will be once the case is ready to go for trial.

I assure the House that the matter has been given consideration. However, having regard to the fact that material benefit would be gained in few cases, and bearing in mind the other procedures available for dealing with complex cases where greater consideration is appropriate, I invite the noble Lord not to press the amendment.

4.15 p.m.

Lord McIntosh of Haringey

My Lords, first, let me address the point made by the noble Lord, Lord Renton, about where such an amendment should be placed. He suggests that it should be in Clause 3 rather than Clause 5. I remind the noble Lord that, although Clause 3 is headed Primary disclosure by prosecutor, it is entirely devoted to the definition of material which should be disclosed. The provision applies to all cases, whether before magistrates' courts or Crown Courts. On the other hand, Clause 5 relates only to cases before the Crown Court, and not the vast majority of cases which come before the magistrates' courts only. Subsection (1) contains the preconditions for compulsory disclosure by the accused.

In this amendment we do not say that there should be a change in the evidential material but that there should be a change in the words produced by the prosecutor himself before the trigger of the compulsory disclosure by the accused. Therefore I believe that this is the right place for the amendment. It is right that the provision should apply only in Crown Court cases. It is right that the case statement should not be confused with external evidential material with which the previous clause is concerned.

Noble Lords criticised the wording of Amendment No. 5. I suppose that means that they have not read far enough into the Bill to see that the wording we have used is taken directly, and without amendment, from subsection (5) of Clause 24. I do not wish to misrepresent the thoughts of the noble and learned Lord the Lord Advocate on Clause 24. However, he argued that the production of a case statement was inappropriate until the case was completely ready to go for trial. But Clause 24 applies to a preparatory hearing. Subsection (5) refers to the matters which, before a preparatory hearing, the judge may order the prosecutor to produce. Therefore the prosecutor has to prepare exactly that sort of case statement, in exactly the wording that I use in the amendment, before or at the preparatory hearing. Therefore the argument about the time when the case statement has to be prepared does not seem to me to have any real validity.

It is possible to make a balance in one of two ways. One was the way adopted by the Royal Commission, which said that the demands of primary disclosure by the prosecution should be reasonably limited. However, it also said that the defence disclosure should be very much more limited than is proposed in the Bill. The Royal Commission proposes, if you like, the low level of equilibrium. However, the Bill proposes a very much more detailed defence disclosure.

These amendments provide that, if the defence disclosure is to be as detailed as is stated in Clause 5, then the primary disclosure by the prosecution has to be that much more explicit for two reasons: first, at that high level of equilibrium the balance has to be maintained; and, secondly—and more practically—unless there is a defence statement in advance, the quality of the defence disclosure demanded by Clause 5 will be that much poorer and the process will not work.

The Government have chosen one way of addressing the problem. It was not the way chosen by the Royal Commission, but it could have been made to work if there had been equality between prosecution and defence. The Government have chosen not to provide equal opportunity between prosecution and defence. I predict that, unless it is altered at a later stage, the effect of this part of the Bill will be to encourage miscarriages of justice.

I have exactly the same desire to avoid miscarriages of justice and to convict the guilty as do the Government. Our intention is exactly the same. But we do not believe that the Government have the balance right. Again, because we are now on Third Reading and for no other reason—not at all because I am convinced of the quality of the arguments against the amendment—I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Lord Williams of Mostyn moved Amendment No. 6: Page 4, line 4, at end insert ("unless in the opinion of the court it is not in the interests of justice for him to do so").

The noble Lord said: My Lords, the principle for which I contend as underlying the amendment is that for the efficient conduct of criminal trials it is essential that a discretion should be vested in the presiding judge to control the conduct of the trial. As noble Lords have seen, the amendment allows a presiding judge in a criminal case to dispense with the service of a defence statement if the court comes to the conclusion that it is not in the interests of justice for the defendant to be obliged to serve such a statement.

Clause 5 has the rubric: "Compulsory disclosure by accused". Subsection 5(3) provides that: The accused must give a defence statement to the prosecutor".

He is obliged to do so. There is no discretion vested in the trial judge to waive that requirement. I suggest that that is a nonsense. It is far too strict a regime. It is inflexible and inefficient for the sensible conduct of many criminal cases.

What is proposed as a consequence of the amendment, if it were accepted, is that a waiver may be given in some circumstances. One can think of them quite easily from normal practice and I suggest that those who have been in practice will recognise them. First, there is the problem of the non-represented defendant, the illiterate defendant, the defendant who is barely competent. Then there is the question of intimidation of witnesses because the defence statement involves not simply a statement setting out the nature of the accused's defence, the matters on which he takes issue with the prosecution and the reason he takes issue with the prosecution, but also includes an alibi defence which must give particulars of witnesses.

There are often cases when prosecutor and defence counsel agree that a defence statement adds nothing to the efficiency and sense of criminal proceedings. In many cases, a prosecutor might be disposed to agree with defence counsel: "We don't wish to have a statement in this case, it adds nothing. What is the point of that absurd inflexibility?" In those circumstances, we put the question: why does one need prescriptive rules without the discretion which ought to remain vested in the trial judge who presides? After all, at present he has a wide discretion. He can, and frequently does, waive the requirement on alibi. Under Section 78 of the Police and Criminal Evidence Act 1984 he is specifically empowered to exclude evidence which would otherwise be inadmissible if it had a disproportionately unfair effect on the conduct of the trial.

Therefore, the principle for which we contend is not new. It is the principle of utility in the conduct of criminal trials. There must be many cases which one can understand and envisage where one does not need the statement in that rigid form. The amendment simply gives authority to the court to waive the requirement. I can see no argument in principle against it or any intellectual basis for objecting to it. I beg to move.

Lord Carlisle of Bucklow

My Lords, I confess that I rise probably in ignorance. Do I understand from what the noble Lord, Lord Williams, said, that there will be a requirement in every case before a Crown Court for such a statement to be given?

Lord Williams of Mostyn

Yes, my Lords, because Clause 5(1) provides that the requirement clause applies by virtue of Clause 1(2), which relates to indictable offences that have been transferred for trial to the Crown Court and summary offences where they are tagged on. I need not trouble with that because it is a detail. Many cases are so simple that the statement is not required.

Lord Carlisle of Bucklow

My Lords, I am grateful for that explanation. If that is so, I wish to ask the Minister whether we are in danger of imposing in every case an additional stage which often may not be necessary? I reflect that, sitting as a recorder, many cases come before me where the issues are clear from the committal papers and statements made by the defendant.

It is true, as the noble Lord said, that from time to time a defendant appears who is unrepresented. However, even in cases where defendants are represented, I should be concerned if a blanket requirement to give a defence statement led to a matter having to be adjourned because such a statement had not been given when in the normal circumstances the case could take place immediately. If that is the effect of the clause, then some form of flexibility should be included.

What worries me more than anything else, when one sits as a recorder, is the number of cases which have to be adjourned for particular reasons. That greatly increases the expenditure and time taken on the cases. I hope that we shall not unintentionally be adding an extra stage when in many cases of a simpler nature it would be unnecessary.

Baroness Blatch

My Lords, first, I believe that the issue between us concerns the means to an end rather than the end itself. I say to my noble and learned friend—is he learned?

Lord Hailsham of Saint Marylebone

Fairly learned!

Baroness Blatch

I shall address the point which my noble friend made about the additional stage.

Lord Carlisle of Bucklow

My Lords, I am probably riot "learned" after my intervention, although I might have been before I rose.

Baroness Blatch

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

I appreciate the point that was expressed in respect of the small number of defendants that may be disadvantaged by the Government's proposals. Although the amendment is intended for a small number of cases, it is of general application and, as such, it would be open to abuse by defendants generally.

I am grateful to the noble Baroness, Lady Mallalieu, for her courtesy in giving me notice that she intended to raise the matter again. Her colleague, the noble Lord, Lord Williams, was speaking for her as she is unable to be present today. In correspondence she suggested that a preliminary hearing would be the occasion on which the judge would be able to exercise a discretion to dispense with the requirement on the accused to provide a defence statement. In that way, it has been said that the amendment would not add an additional stage to the proceedings. However, I submit that the amendment removes one set of procedural requirements only to create another. It would still be necessary to devise a procedure for applications to a court for an exemption and for the consideration of the application by the court to take place at some point after primary prosecution disclosure. To enable the court to form a view on whether it was in the interests of justice to require a defence statement, the accused would need to set out the circumstances of the case in sufficient detail, and the prosecutor would have to be able to make representations about the application. Disputes would need to be resolved at that hearing.

I assume that the preliminary hearing to which the noble Baroness referred in correspondence would be the plea and directions hearing. The effect would be to move the plea and directions hearing away from its primary purpose of case management and into the realm of issue resolution: a function for which such hearings are not well suited. In that way, the amendment would add to court business as a whole and slow down the delivery of justice. In cases where the judge decided that the accused should provide a defence statement, the process of defence disclosure will have been delayed until after the plea and directions hearing, with the possibility of a further hearing being needed if disputes about the extent of disclosure arose subsequently.

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

In respect of unrepresented defendants, I strongly agree that the accused must not be put in the position of not producing a defence statement simply because no-one told him he had to produce one. I can assure the House that we are considering the options for giving information to the accused in advance of the disclosure regime so that he is aware of its requirements. This is a matter which we are committed to resolving before the implementation of the scheme, although it is not, I submit, necessary to resolve it through the Bill itself. In a similar vein, we shall need to ensure that practitioners who will need to operate the new scheme are offered the necessary training.

Finally, if I may turn to one further point made on Report, it was suggested that the unnecessary additional costs would be incurred by the Legal Aid Fund should defence statements be required in relatively straightforward cases where the issues are clear. The waiving of the requirement for a defence case statement in such cases is unlikely to have any effect on legal aid costs. These cases, whether in the magistrates' court or the Crown Court, are likely to fall into the arrangements for standard fees and as such no savings would result. The issues would still have to be considered and the task of putting them into a defence statement is likely to be fairly simple. As I have said, I fear that the procedure for dispensing with a defence statement would add to court business as a whole and slow down the delivery of justice.

For the reasons I have given today and at earlier stages of the Bill, I remain of the view that the advantages of formalising the defence in a defence statement apply across the range of Crown Court cases, and that the drawbacks of creating an exemption outweigh any benefits that might accrue.

Finally, the prosecutor may only comment at trial on the failure to give a defence statement with the leave of the court. If he does, it will be for the jury to decide what inference may properly be drawn. In so doing they will have the benefit of the summing-up by the trial judge in which he or she can direct them as to what inference it is proper to draw. If it really is not in the interests of justice for the accused to have given a defence statement, that is bound to affect whether the judge allows inferences to be drawn.

4.30 p.m.

Lord Williams of Mostyn

My Lords, I think the Minister has elided a number of different questions. Case management cannot sensibly be seen as wholly distinct from issue resolution. I suggest that it is not helpful to speak of the whole range of Crown Court cases. They range, after all, from shoplifting a jelly at Tesco to murder. But many murders are infinitely simpler in trial than shoplifting bananas or jellies from Tesco.

The noble Lord, Lord Carlisle of Bucklow, and I have both practised in the Crown Courts. We have prosecuted and defended serious cases. Let me take murder as an example. In many a case, if the noble Lord said to me (he prosecuting and I defending): "What's the issue?", I should simply tell him self-defence or diminished responsibility. The judge might well ask him: "Lord Carlisle, do you really want a full defence statement in these circumstances?". He would say, "No, of course not. We need no adjournment; we need no extra costs".

Our contention is that there is a significant number, perhaps a minority, of cases where flexibility is the friend of the saving of time and expense, and inflexibility is the ally of delay and waste of money. The Government seem intent at present—unless they rethink before the matter goes to another place, or while it is in the other place—on imposing a wholly rigid structure on a range of criminal cases that is infinitely diverse.

It is not an answer to say that the sanction on the non-provision of a defence statement is the comment under Clause 10(3). That is a sanction. We seek to attend not to sanctions, but to whether the defence statement is required in every case. At the moment, the words in Clause 5(3) of the Bill are that, The accused must give a defence statement to the prosecutor",

and the particulars are fully set out. It is a recipe for inflexibility, expense and delay, and therefore one that is best torn up and thrown away.

I hope that the Government will think again on this matter. I am bound to say that when I have put propositions of this sort either to the Minister or to the Lord Advocate, they have been more than willing to deal fully with them in correspondence. I suggest that the amendment would improve this piece of legislation and make the conduct of criminal cases much easier. However, this matter has been traversed for a little while now and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drtnnadoon moved Amendment No. 7: Before Clause 11, insert the following new clause—

PUBLIC INTEREST: REVIEW FOR SUMMARY TRIALS

(".—(1) This section applies where this Part applies by virtue of section 1(1). (2) At any time—

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

the accused may apply to the court for a review of the question whether it is still not in the public interest to disclose material affected by its order. (3) In such a case the court must review that question, and if it concludes that it is in the public interest to disclose material to any extent—

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

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

The noble and learned Lord said: My Lords, in moving this amendment with the leave of the House I shall speak also to Amendments Nos. 8, 9 and 10, which are related to it.

The House will recall that we debated similar amendments on Report. The main purpose of those amendments, which in turn had been brought forward following a debate in Committee, was to exempt a magistrates' court from the duty to keep under review an order that it was not in the public interest to disclose certain material to the accused. On Report, the Government withdrew the amendments for further consideration of comments made during the debate by the noble Lord, Lord Williams of Mostyn, and my noble friend Lord Renton. Since that debate those points have been given full consideration.

The noble Lord, Lord Williams, made three points. His first concern was that, in placing the onus on the accused to apply for a review of a non-disclosure ruling, an unrepresented defendant might be disadvantaged. The question arose as to whether legal representation should be made available in such circumstances. As was explained to the noble Lord, the number of applications made to magistrates' courts to withhold material on public interest grounds is fairly low. The existence of a claim for public interest immunity may well be a reason for a magistrates' court to consider committal for trial to the Crown Court. In fact, an informal count over the past two years revealed only six applications. In all cases the defendants were legally represented.

Most defendants tried in a magistrates' court have legal representation, either privately or under the legal aid scheme. Nevertheless, I accept that very occasionally the situation could arise where an application is sought in respect of proceedings against an unrepresented defendant. I also accept that such applications can pose particular difficulties for the layman. While, therefore, the discretion whether or not to grant a legal aid order must remain with the court, the Lord Chancellor's Department accepts that it should issue guidance to magistrates' courts advising them of the new provisions and the opportunities to invite unrepresented defendants to apply or re-apply for legal aid. So the court will be able to review the entitlement to legal aid in the light of the new circumstances.

I should also point out that courts will normally draw an unrepresented defendant's attention to the benefits of representation whenever complex issues arise during the course of the trial. It seems likely that a possible application to the court for a review of an order by the court that disclosure is not in the public interest would fall into that category. It should, of course, be recognised that very little, if anything, can be done for those defendants who choose not to be represented notwithstanding their eligibility for legal aid or that they have the means to pay for private representation. When such cases arise and the defendant declines the advice of representation, the courts have to deal with the situation as best they can. Courts operate a duty solicitor scheme so that advice is available immediately if a defendant who has chosen to be unrepresented changes his mind.

The noble Lord also asked whether the review should be carried out by a judge rather than a magistrate. While I understand the argument that these difficult matters should be reserved for members of the professional judiciary, it is important to bear in mind that we are concerned here with the summary trial of cases. These will either be less serious matters, which Parliament has in the past taken the view are best dealt with summarily, or cases where the accused and the court have both agreed that the trial should proceed summarily. Other either-way cases would of course be tried in the Crown Court. In those circumstances it seems to me to be wrong to seek to remove to another forum decisions on matters which are undoubtedly important but are not matters which, I think, anyone is suggesting are automatically in all cases outside the competence or ability of properly advised lay magistrates. Granted, they may give rise to delicate questions of balance, but such cases will be rare in magistrates' courts and it is prudent therefore to provide an appropriate mechanism to avoid having to resort to disproportionately complex procedures.

Finally, the noble Lord, Lord Williams, commented that, should such decisions have to be made by magistrates in the first instance, there ought to be an avenue of appeal to the Crown Court. I do not think that it is necessary to provide specifically for an appeal in such matters. It is of course open to an aggrieved person to question the proceedings in the High Court by way of judicial review or case stated, and that right would be unaffected by our proposals. In the event of a conviction, the decision would effectively be reviewed by the Crown Court if there was an appeal against conviction. An additional appeal to the Crown Court adds an element of duplication and, unless carefully circumscribed, could become almost automatic if the magistrates decided against the accused.

I fully accept that the points raised by the noble Lord, Lord Williams, merit consideration, and consideration has been given to them. They are matters of balance. But I invite your Lordships to take the view that Amendment No. 7 avoids any risk of injustice in the magistrates' courts without requiring us to depart from the essential nature of a simple summary procedure.

In the debate at Report, my noble friend Lord Renton drew attention to a double negative in subsection (3) of the new clause before Clause 11. As tabled, that required a court to make an order, if it no longer believes that it is not in the public interest to disclose material".

Parliamentary Counsel has taken the opportunity to improve the drafting of the new clause, and he has removed the double negative. The court must now make an order, if it concludes that it is in the public interest to disclose material".

That has the same effect as the previous formulation: it either is or is not in the public interest to disclose material, and if it is not in the public interest not to disclose it, then it must be in the public interest to disclose it. I hope that the removal of that double negative finds favour with my noble friend. I beg to move.

4.45 p.m.

Lord Williams of Mostyn

My Lords, on the last occasion we had an extensive, wide-ranging discussion on the question of non-disclosure rulings. The Minister and the Lord Advocate undertook to consider those difficult questions with care. I am bound to say that they did so because the Minister was good enough to write, on 14th February, setting out a full, reasoned scheme of explanations why my proposals could not be accepted.

Public interest immunity is not always an easy matter, even for Attorneys-General.

Lord Carlisle of Bucklow: My Lords, or even for Lords Justices.

Lord Williams of Mostyn

My Lords, or Lords Justices, but Lords Justices sometimes say that they may be wrong, which is not a necessary qualification for the post of Attorney-General. We are looking at a difficult situation but, as the Lord Advocate said, in practice quite small—six cases in two years. That puts the matter into a helpful context.

It is an enormous advantage, and I am grateful that the noble and learned Lord the Lord Advocate repeated it in your Lordships' House, that the Lord Chancellor's Department will give guidance—obviously subject to the discretion of the magistrates' courts—in regard to the necessity or the desirability of having representation available. I leave that on one side, grateful as I am for that indication.

I still suggest that these matters are better dealt with by judges than by magistrates. I do not in any way disparage the magistrates; I have the greatest admiration for their work. But with such a small body of experience—six cases in two years—no magistrates' court will be able to build up a body of judicial experience which is useful in dealing with such tricky questions. I simply suggest again that, if these questions arise so rarely, would it not be better to have the liaison presiding Crown Court judge to deal with them?

The question of appeal goes hand-in-hand with my last suggestion. If magistrates are to deal with those matters, a quick, simple, local appeal ought to be available to the Crown Court. On page 3 of the letter dated 14th February to which I referred, it was suggested, and the Lord Advocate repeated to your Lordships this afternoon, that, It is of course open to an aggrieved person to question the proceedings in the High Court by way of judicial review or case stated". Then, almost within the next breath, he spoke of avoiding delay and expense. An expedited hearing for judicial review in the Crown Office list is lucky to get on in nine months at the moment. I am suggesting a quick, cheap appeal to the local Crown Court which would be much more effective in practice.

Those are matters which I hope to coax the Minister to reflect on a little further. The problem is small numerically and can be dealt with on the basis of the scheme I proposed. I repeat how grateful I am for the approach adopted by the Minister and the Lord Advocate.

Lord Renton

My Lords, the Government should be congratulated on what they have done. I do not go along with the noble Lord, Lord Williams of Mostyn, in saying that when a case is before a court which happens to be a magistrates' court—most likely a stipendiary—the public interest immunity point should nevertheless not be decided by that court but should go necessarily to a High Court judge. Our judicial procedures are elaborate, time-consuming and costly. We should avoid adding to them. The Government have got this right. Also, I thank my noble friends for getting rid of the double negative to which I referred earlier.

Lord Rodgers of Quarry Bank

My Lords, perhaps I may ask the noble and learned Lord a question. In referring to the circumstances where the defendant is not represented in a magistrates' court—I fully understand that those are rare occasions—the Lord Advocate said that it should be recognised that very little if anything can be done for a defendant who chooses not to be represented. He then referred to eligibility for legal aid and to the question of whether a defendant has the means to pay. There will be those defendants who are not eligible for legal aid in any circumstances but do not judge that they have the means to pay. It is a subjective matter and they may decide that they cannot afford to pay.

The noble and learned Lord went on to say that, the courts have to deal with the situation as best they can". He continued by referring to the duty solicitor scheme. When he says that the courts will deal with the situation as best they can, can he explain to the House how indeed they can deal with it and what the options open to them will be?

Lord Mackay of Drumadoon

My Lords, perhaps I may reply to the point that has just been raised. Where an accused person or defendant is determined to represent himself, the court, to use the words I adopted, will have to deal with the situation in the best way it can. The first tack is normally to seek to persuade the defendant to change his mind, and if he is eligible for legal aid, to grant such an order. However, from time to time there come before the courts people who for whatever reason are determined to represent themselves. Experience suggests that in that situation the court—whether it be a member of the professional judiciary or the magistracy—does a good deal more than it would normally do to ensure that the argument that falls to be made on behalf of the unrepresented person is brought into the discussion.

This can be done in a variety of ways. It can be done by leading the defendant to put forward an argument which one feels ought to be made on his behalf; or it can be done by saying to the prosecutor, "Well, the defendant's answer to the point you make is this way". The court tends to adopt a more interventionist role than it would normally do if both sides were professionally represented. That is what I had in mind in saying that the court would deal with the situation in the best way it could. It is a commendable practice which courts are required to adopt from time to time when they are faced with an unrepresented accused who is determined to decline whatever offer of legal assistance is made in his direction.

On this occasion I am in the fortunate position of having my noble friend Lord Renton entirely on my side. Although I have not been in your Lordships' House for long, I am well aware of what a great pleasure and a great benefit that is. It is a balance to be struck whether to leave the matter with the magistracy or to introduce the Crown Court into the situation. In all questions of balance a professional judgment has to be taken. In this instance my noble friend Lord Renton and I share the same professional judgment. Having listened to the helpful comments made by those on the Benches opposite, I intend to sit down, having invited your Lordships to agree to the amendment.

On Question, amendment agreed to.

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

Lord Mackay of Drumadoon moved Amendments Nos. 8 and 9: Page 8, line 2, at beginning insert— ("( ) This section applies where this Part applies by virtue of section 1(2)."). Page 8, line 13, leave out ("no longer believes that it is not") and insert ("concludes that it is").

The noble and learned Lord said: My Lords, these amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Clause 12 [Rules of court]:

Lord Mackay of Drumadoon moved Amendment No. 10: Page 8, line 26, leave out from ("provision") to end of line 29 and insert ("mentioned in subsection (1A). (1A) The provision is provision as to the practice and procedure to be followed in relation to—

1. (a) an application under section 3(6), 7(5), 8(2) or (5), 9(8), (Public interest: review for summary trials)(2) or 11(3);
2. (b) an order under section (Public interest: review for summary trials)(3);
3. (c) an order under section 11(4) (whether or not an application is made under section 11(3)).").

On Question, amendment agreed to.

Clause 19 [Effect of code]:

Lord McIntosh of Haringey moved Amendment No. 11: Page 12, line 32, after ("conducting") insert ("or participating in").

The noble Lord said: My Lords, this amendment relates to Clause 19 which seeks to apply to a very limited extent—to investigators other than the police—the code of practice which has been described in the preceding clauses. Although I recognise that Clause 19 is based on Section 67 of the Police and Criminal Evidence Act 1984 it is nevertheless a very feeble clause. It provides: A person other than a police officer who is charged with the duty of conducting an investigation … shall … have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers".

We had a number of debates on this point at Second Reading and in Committee. The first argument put forward, which wisely was withdrawn, was that it would be impossible for a code to apply to other than police officers because the other investigating agencies were under the control of different Secretaries of State. The Minister recognised that that was not a sound argument. We then went on to consider the status of the phrase "have regard to". A number of noble Lords in all parts of the House pointed out the weakness of the phrase "have regard to a code of practice". One can have regard to a code of practice, then go away and do something different, and get away with it.

The distinction between having to "have regard to" and "comply with", which is what we proposed at Report stage should be the wording in the Bill, is of great importance in legislation. The phrase is used very frequently. When I have wanted to weaken, for example, the control by central government of local authorities I have always argued that local authorities should "have regard to" the directions of central government. Conversely, when Ministers want to assert strong central control, they use the words "comply with". I suggested at Report stage that the words "comply with" were the only way of ensuring that an investigation, which could be carried out, and very often is carried out, by investigative agencies other than the police, should be in accordance with the code—in other words, that the words "comply with" were more appropriate. However, on a Division, the House took a different view.

So we are stuck with the words "have regard to". We cannot raise that issue again but we now seek to do something more modest which is appropriate to our deliberations after Third Reading but is still worth doing. The duty of conducting an investigation under Clause 19(1) refers to all kinds of other agencies. It refers to Her Majesty's Customs and Excise, to the inspectors of the Serious Fraud Office, to local authority trading standards officers and to the Health and Safety Executive, which, as the Minister pointed out last time, has the duty of prosecuting as well as investigating. It is certainly true that Clause 19 covers those investigating authorities. But it does not cover people on behalf of whom we expressed a great deal of concern at earlier stages—people like expert witnesses, particularly forensic scientists.

It is true to say that forensic scientists and other expert witnesses need not be covered by the whole of the code of practice. But the code of practice has been—and if it has not been, it certainly can be—drafted in such a way that it only applies, as appropriate, to those people. However, it is surely of great importance that those who are participating in an inquiry, like forensic scientists, should be covered, as appropriate, by the code of practice. For exactly the same reasons as we gave last time it is important that the code of practice should cover the investigation in a criminal case. If there are any defects in the drafting of Clause 19 then the investigation will be broken backed. The code of practice will only apply fully to police officers; it will apply in the "have regard to" sense to other investigating authorities; it will not apply at all, even in so far as they are concerned, to those who are participating in an inquiry, like forensic scientists.

When one looks at the code of practice, surely it is important that all the rules about the proper copying of material, its retention, and the reporting and recording of material, are all in the hands of people like forensic scientists who are participating in the investigation as well as in the hands of those who are conducting the investigation. I am grateful to my noble friend Lord Williams for pointing out that my original word "assisting" could have led to misunderstanding since I believe the phrase "assisting the police in their inquiries" has a specific meaning, at least in the tabloids. I am grateful to him for suggesting that "participating" is the right word. I believe that it is and that this amendment is constructive and helpful. I commend it to the House. I beg to move.

5 p.m.

Lord Mackay of Drumadoon

My Lords, I fully accept that the noble Lord, Lord McIntosh, puts forward this amendment in a constructive frame of mind. But, on closer scrutiny, I suggest that it is not a necessity to the structure of the scheme and it might go beyond that to create practical difficulties to at least some of the people to whom it might apply.

It is important to bear in mind that the code of practice, as provided for in the scheme, is directed to those charged with conducting investigations. Inevitably, from time to time, they are required to seek "assistance" from others, whatever construction one puts on that word. That assistance can come from people such as forensic scientists and police surgeons. It is right that your Lordships should be satisfied that outside experts instructed to assist in investigation have proper regard to their professional responsibilities.

But, when one looks at the steps that the Forensic Science Service takes to impose a proper level of professional standards and discipline upon its work, it is quite clear that in its case there is no necessity for what this amendment provides. As you Lordships may know, the Forensic Science Service has been an agency since 1991. It exists to provide a service not only to the police but to defendants and indeed to anyone who supplies material to it requesting that it be scientifically examined. It is therefore independent of the police and that has become much clearer since it changed to agency status.

Its established practice is to retain all documentation dealing with the material submitted to it for examination, whether or not the prosecution relies upon the results and they are disclosed to the accused. This documentation is retained for several years after the proceedings have been concluded.

Material which is submitted to the Forensic Science Service for examination is either retained by the service or returned to the police or whoever gave it the material in the first place. If the material is kept by the Forensic Science Service, it is kept with the documentation to which I have referred. If it is returned to the police, then obviously it will fall within the provisions of the code of practice. As many of your Lordships will know, witness statements which members of this service provide for court purposes are much fuller in detail than they used to be. They explain in detail how the witness has gone about dealing with the material received from the police, what hypothesis the police asked the witness to test for, and what results, if any, were found.

An independent check on the service's procedures is afforded by the fact that it is accredited by the National Measurement Accreditation Service and its administrative procedures are accredited by the British Standards Institute. On the basis of that information there can be little doubt that the public have every right to be confident that the Forensic Science Service will do its work in this field to the highest possible professional standards.

In moving the amendment the noble Lord concentrated particularly on the forensic scientist but in the course of his remarks he said that it can apply to other experts. That takes us into the field of such experts as medical experts, which was a subject discussed during Report stage in the context of an amendment moved by the noble Lord, Lord Rodgers of Quarry Bank. He was concerned that a requirement to abide by a clause amended in these terms would cause difficulties for doctors in view of their existing duty of medical confidentiality. On that occasion, my noble friend Lady Blatch gave an assurance to the House that Clause 19 as currently drafted does not apply to doctors acting as police surgeons and indeed that, if it did so apply, the Government were required to bring forward an amendment to remove that difficulty.

Unfortunately, one consequence of the amendment proposed by the noble Lord, Lord McIntosh, would be that the House would be going in the opposite direction to the amendment tabled by the noble Lord, Lord Rodgers. It would be going in the opposite direction to the assurance given to the House by my noble friend Lady Blatch.

Similar difficulties might well arise in other fields where professional experts were called in to assist. In those circumstances, with the assurance that experts are members of professional bodies who strive to adhere to the highest possible standards, it is in my view correct for the Government to take the view that the code of practice is directed to those conducting the investigation and not to those who may be instructed to assist in one small part of it. For those various and several reasons, I hope that the noble Lord will feel it possible to withdraw his amendment.

Lord McIntosh of Haringey

My Lords, it goes without saying that I am in no way impugning the professional integrity of the Forensic Science Service, nor indeed of anybody else involved as a forensic scientist in investigations, because, as the Lord Advocate will recognise, not all forensic science investigations are carried out by the Forensic Science Service. There is, for example, still the Metropolitan Police forensic science laboratory and there are also independent accredited forensic science laboratories which also work to full professional standards. I acknowledge the validity of the point about police surgeons, but that can be very easily remedied by an amendment to the Bill, as the Lord Advocate said, as it goes to another place.

However, the fundamental point has not been addressed. The Government have recognised and considered it right that the investigation should be held under a code of practice by providing one in accordance with the wishes of the Delegated Powers Scrutiny Committee and by providing that the code of practice shall be laid before Parliament and subject to its approval. If it is considered right for the investigation to be covered by a code of practice, then that must be right for all parts of the investigation, including those parts which are subcontracted to experts. As the Lord Advocate is now claiming that professional codes of conduct are sufficient for the purpose, then there is no reason to have the code of practice which is before us and which Parliament will be invited to approve.

I do not believe that the Government can have it both ways. We are arguing for a code of practice which gives the only assurance that matters; namely, that the investigation was carried out according to common standards. There will need to be variations for experts and for different types of investigator and investigation, and nobody denies that. But the principle that they should all be covered and be responsible ultimately to parliamentary approval is what I am sure the Delegated Powers Scrutiny Committee intended and what the Government now intend. I am sad that they do not recognise the validity of the point of providing for the inclusiveness of the code of practice, which is what is really needed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Power to order preparatory hearing]:

Baroness Blatch moved Amendment No. 12: Page 14, line 20, leave out ("person").

The noble Baroness said: My Lords, in moving Amendment No. 12, I should like to refer also to Amendments Nos. 14, 15, 16, 21, 22, 24 and 25 and to Clauses 40, 41, 42, 54, 59 and Schedules 2 and 3.

I can give an explanation of the detailed effects of the amendments if the House would find that helpful, but they are all either technical or designed simply to tidy up the drafting of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 37 [Indemnification of justices and justices' clerks]:

Baroness Blatch moved Amendment No. 13: Leave out Clause 37.

The noble Baroness said: My Lords, your Lordships will recall that on Report the noble and learned Lord, Lord Ackner, successfully moved an amendment to Section 53 of the Justices of the Peace Act 1979. The intention underlying the amendment was to strengthen the indemnity which Section 53 provides to justices and justices' clerks against orders for costs and other sums in respect of matters arising from criminal jurisdiction. Perhaps I should just remind your Lordships at this point what the terms "indemnity" and "immunity" mean in this context. Indemnity here means the payment by the magistrates' courts committee of any sums which have been ordered to be paid by a justice or justice's clerk, whereas immunity means protection against a costs order being made against them. As your Lordships will recall, the effect of the amendment was to bring the test of whether indemnity should be given to justices in criminal matters in line with the test for immunity in respect of actions arising from matters outside a magistrate's jurisdiction.

The amendment which your Lordships have before you today does not seek in any way to challenge the substance of that amendment. Far from it: the aim is simply to improve the drafting and to clarify that amendment. The noble and learned Lord, Lord Ackner, will, I hope, welcome the spirit of that response.

As your Lordships will see, the proposed new clause would insert a new subsection, to be numbered 1A, into Section 53 of the Justices of the Peace Act. This new subjection sets out the provisions which apply to matters arising from criminal jurisdiction and provides that indemnity shall be given unless it is proved that the justice or justice's clerk acted in bad faith. That is the new provision which the noble and learned Lord introduced by his amendment. The existing subsection (1) will cover all other cases. In those such cases, there is an entitlement to indemnity if the justice or justice's clerk acted reasonably and in good faith.

There will thus be an important distinction between the provisions which will now apply to criminal matters and those which apply to cases arising from civil jurisdiction. In civil matters, the magistrates' courts committee has a general power to provide indemnity and is obliged to provide indemnity if the justice or justice's clerk acted reasonably and in good faith. In criminal cases, indemnity will have to be given unless bad faith is proved: in civil cases, indemnity has to be given if good faith and reasonableness are demonstrated. The Government believe that it would aid clarity and avoid confusion to set out the different criteria which, reflecting the will of the House as expressed at Report stage, will now arise under the two jurisdictions in separate subsections in the way which is proposed.

Your Lordships will also remember that when I spoke on this matter previously I explained that my noble and learned friend the Lord Chancellor was aware of the concerns which justices have about their potential liability for costs and, in particular, their view that, as a matter of principle, they should be given immunity against such orders. The amendment moved by the noble and learned Lord, Lord Ackner, and approved by your Lordships, does not address the question of immunity. In addition, it is restricted to criminal cases because to have included civil cases would have taken it outside the scope of the Bill. Although it therefore does not cover many of the cases which have given rise to the anxieties which justices feel, it is very much in keeping with the Lord Chancellor's approach to look for ways of giving protection provided there has not been bad faith. The Lord Chancellor still believes that it would be right to consult before bringing forward legislation to address this and intends to issue a paper in the summer.

While this work on immunity is under way, my noble and learned friend the Lord Chancellor has also said that he will look at ways of improving the arrangements for providing indemnity so that, in the interim, justices and justices' clerks can have confidence that the current statutory provisions will work.

Finally, commencement provisions have been included. The amendment, while improving the position of justices and justices' clerks, does, in theory at least, have financial implications for magistrates' courts committees. For that reason, it follows established principles in providing for commencement to be on a date as soon as possible after Royal Assent. I beg to move.

5.15 p.m.

Lord Ackner

My Lords, in moving Amendment No. 13, the noble Baroness spoke also to Amendments Nos. 20 and 23, which appear with it on the groupings list. That tells the whole story which she has recounted.

I accept the amendments proposed since they are designed to put in the form which is considered most appropriate the amendment which I moved, and succeeded in, on Report. Your Lordships will appreciate that my amendment removed from justices the potential liability to pay costs in criminal cases where it was considered that they had acted unreasonably, and restricted it in future to cases where they had acted in bad faith. It was limited to criminal cases, not through any lack of ambition to safeguard them from the unusual and surprising liability with regard to civil cases, but because I was restricted to criminal matters as a result of the nature of the Bill. I hope that my noble and learned friend the Lord Chancellor, with whom the noble Baroness has so successfully interceded, will deal with that anomaly as soon as possible.

The noble Baroness will no doubt be pleased to know that the amendment has given great comfort to some 30,000 magistrates, although they appreciate that it is hoped that there will be more to follow. In particular, the noble Baroness has made very contented a Somerset magistrate on the Western circuit, my old circuit, who has been looking forward to what we have partially achieved since, he says, 1989, when my noble and learned friend the Lord Chancellor made a promise of indemnity for magistrates in a speech in which he undertook to, introduce legislation at the earliest opportunity". I hope that "the earliest opportunity" will not involve a wait of another seven years.

Perhaps I may add this for the benefit of the noble Baroness: since that amendment was moved, my post has revealed that two class members of the judiciary are left out in the cold. My heart yearns for the first, the general commissioners of income tax; while the second class, to which I refer with some anxiety, comprises coroners. Again, I express my gratitude to the noble Baroness.

Lord McIntosh of Haringey

My Lords, these amendments reveal the wisdom of the noble and learned Lord, Lord Ackner, not only in arguing the case but in pressing the matter to a Division on an evening when the Conservative winter ball was being held outside the Palace of Westminster while the Labour Peers' party was being held inside the Palace of Westminster. I think we deserve a little credit for providing his troops, even if not for helping with his arguments. I accept that the Government are acting reasonably and in good faith, otherwise I should be worried about removing Clause 37 without being certain that they were going to put in the new clause after Clause 53.

Lord Ackner

My Lords, the noble Lord may wish to know that I concede that it is not my powers of advocacy but chance that brings forth the occasional victory. The last one occurred, I think, when it was Ladies' Day at Ascot.

Lord Rodgers of Quarry Bank

My Lords, I would say only that not everyone was enjoying a party downstairs with the Leader of Her Majesty's Opposition. There were others who were not being so entertained, and we were much persuaded by what the noble and learned Lord said. Although I had looked at the papers which had been circulated in advance of our debate on Report, it was only the noble and learned Lord's speech which brought me to my feet in support of his amendment.

Perhaps I may admit also that I was slightly equivocal on that occasion, not about the virtues of the amendment, but about the possibility of a Division being held and carried. So perhaps I was a little remiss in suggesting that, if the amendment were not pressed, the Government would bring forward their own amendment. That was an optimistic position to have adopted. I am delighted that the amendment was pressed to a Division and that the noble and learned Lord the Lord Chancellor accepted it. However, I cannot help but say that, when the noble and learned Lord the Lord Chancellor expressed the view in your Lordships' House on 15th January that considerable examination in depth of the problem was required before Parliament brought forward a solution, he was either ill advised or had a different timescale from the rest of your Lordships. Considerable examination in depth has been accomplished in a remarkably short time, and your Lordships are grateful.

Lord McIntosh of Haringey

My Lords, before the noble Lord sits down, in case he feels that he is the victim of social exclusion, as a member of the Hornsey and Wood Green Labour Party perhaps I may assure him that any application from him to rejoin would be treated with all seriousness.

On Question, amendment agreed to.

Clause 40 [Non-appearance of accused: issue of warrant]:

Baroness Blatch moved Amendment No. 14: Page 23, line 22, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 41 [Either way offences: accused's intention as to plea]:

Baroness Blatch moved Amendment No. 15: Page 26, line 1, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 42 [Enforcement of payment of fines]:

Baroness Blatch moved Amendment No. 16: Page 26, line 12, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 49 [Orders in respect of certain assertions]:

Lord McIntosh of Haringey moved Amendment No. 17: Page 29, line 36, at end insert (", or may permit the person about whom the assertion is made to make a statement in open court in refutation of the assertion, after determination of sentence.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 18. Let me say at once that these are probing amendments, partly because I have only been able to bring them forward on Third Reading and it would clearly inappropriate to press them and partly because they contain an error in English usage which I detest profoundly and for which I apologise. They use the words: a statement in open court in refutation of the assertion".

The word "refutation" means to prove falsity or error. It is misused frequently to mean the weaker words "rebuttal" and "response". So if the amendment were to be pressed, it would have to be in terms of response rather than refutation.

I, like the Minister, have been in correspondence with the Guild of Editors, which has expressed its concern about the reporting restrictions introduced in Clause 49 and succeeding clauses about derogatory assertions made in open court, normally in a plea in mitigation. In these clauses the Government have imposed reporting restrictions, alternatively temporary or permanent, in case someone should be defamed and not have an opportunity to reply.

The Guild of Editors has urged me to put forward amendments which would remove the Government's provisions on reporting restrictions and replace them with an opportunity for what it calls refutation, and what I would call response. I do not feel that that is the right course of action. Although I am of course in principle opposed to reporting restrictions whenever any question of freedom of speech is in issue, nevertheless, I was persuaded by the Government's argument on this matter that reporting restrictions might well be necessary to avoid damage to innocent people and possible damage to subsequent trials.

I thought that it was worth raising the issue by putting forward the possibility of a response as a option available to the court in considering whether to impose a reporting restriction. The court might feel that there are circumstances in which reporting restrictions would not be appropriate but that an opportunity for response might meet the case.

As Clause 49 and the subsequent clauses are all couched in the term "may"—in other words, they are permissive for the court to take action—I thought that it would not do any harm to raise the issue to see whether the Government felt there was any mileage in the alternative suggestion which in no way damages the Government's proposals in these clauses. I beg to move.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble Lord for the measured and frank way in which he raised this issue. The matter has been given consideration, and the Government remain of the view that the best way to prevent harm to victims, something which Clause 49 is designed to achieve, is to prevent reporting altogether.

Allowing a right of rebuttal to a victim or any other witness who might be attacked in the manner set out in Clause 49(4) might to some extent serve to increase the distress which such a witness had already suffered. The person might already have been a victim, as proved by the jury's verdict, of a serious crime. If that person's character has been attacked in a false and improper way, he may have suffered stress. To raise the possibility that such a person might have to have the full issue revisited by statements being taken from him, or made on his behalf, would give rise to a serious risk of further distress being caused. What is perhaps much more important, is that there could be no guarantee that any rebuttal made in court along the lines which the amendments are designed to achieve would be reported, let alone reported in the full manner in which the allegations were made.

We are all familiar with reading stories in the newspapers on one day alleging some story about a named individual, and reading a few days later, tucked on the inside pages in small print at the bottom of a column, what is said to be a full apology on behalf of the editor for the fact that an error was made, whether by the editor or those who made the comments which the editor has published subsequently. There could be no guarantee that members of the Guild of Editors would give anything like the prominence to the rebuttal statements that they had to the original allegations.

It is for that reason—on the limited basis which Clause 49 provides—that the Government are persuaded that preventing reporting altogether is the correct attitude to adopt. The noble Lord acknowledged that there was a justification for the Government to have Clause 49 on that basis. He brings forward these probing amendments, as he describes . them, to test the Government's attitude.

The Government remain committed to the principle that proceedings in open court should be reported as fully as possible except in strictly limited and exceptional circumstances. When one is dealing with the sort of behaviour set out in Clause 49(4), one has such exceptional circumstances which are strictly limited. Although the amendment was put forward in a responsible manner, I regret that it is not one that the Government can accept.

Lord McIntosh of Haringey

My Lords, I am grateful to the noble and learned Lord for that response. He was unfair only in one small respect. He described the pain that might be imposed on the victim in having to make a statement and of it being repeated in court. The amendments provide only that the person about whom the statement has been made will be permitted to adopt the procedure. Nothing would ever be forced upon him. However, in the light of the noble and learned Lord's response, with which I largely agree, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

5.30 p.m.

Lord Williams of Mostyn moved Amendment No. 19: Before Clause 53, insert the following new clause— USE OF WITNESS STATEMENTS (".—(1) If the prosecutor reasonably believes that the accused may use a written statement made by, or photograph of, a person who is named in the charge for a purpose other than the preparation of his defence or appeal, he may apply to a court for an order restricting access by the accused to such statement or photograph. (2) An order made by a court under this section may prohibit the accused's legal representative from—

1. (a) making or permitting any person to make a copy of the statement or photograph;
2. (b) releasing the statement or photograph to the accused; or
3. (c) making or permitting any disclosure of the statement or photograph or its contents to any person except when in the opinion of the accused's legal representative it is necessary in the course of preparing the defence or appeal.

(3) An order made by a court under this section may require the accused's legal representative—

1. (a) to ensure that the statement or photograph is always kept in a locked, secure container when it is not being used; and
2. (b) to return the statement or photograph to the prosecutor when the legal representative is no longer instructed in the matter.

(4) An order made by a court under this section shall not prevent the accused from inspecting all material which should be disclosed by the prosecutor to the accused.").

The noble Lord said: My Lords, the amendment proposes the introduction of a new clause which will offer a safeguard to a significant class of people who have no such safeguard. The burden of the new clause is to entitle and empower a court to prohibit the publication of material which has come into the hands of an accused which may do damage to a victim. I declare an interest as a trustee of the NSPCC and chairman of a commission of inquiry into the prevention of child abuse.

If a small child is killed, sexually abused or raped, photographs come into existence. Furthermore, statements come into existence which go into a good deal of detail about family circumstances and often the circumstances of other children in the family group and of the children of neighbours in a small community. It is a significant poison in our system that defendants who by definition are perverted, if they are properly convicted, can lay their hands upon material such as photographs and statements. It is well known that they circulate them in prison, but the matter does not end there. In my professional experience, defendants claim as of right to be entitled to retain the documents and the photographs while claiming to appeal, sometimes legitimately and sometimes not. That process of appeal can go on for years.

The poisonous material, which is capable of doing great harm to the victims of such categories of crime, is often circulated in prison. When the offender leaves prison it is further circulated among rings of men, usually, who enjoy sado-masochistic photographs, statements and so forth. The amendment proposes that where the prosecutor has reasonable grounds for believing that that may happen he may apply to the court for an order of prohibition—I put it shortly—so that the legal representatives, solicitors or counsel are not to hand over the photographs or the statements to the defendant. They are, of course, to take instructions on them but they are not to allow the defendant to take copies and the material must be kept under lock and key.

I do not suggest that the wording of the amendment is necessarily perfect but there is a real vice and a real problem to be dealt with. It is wrong, cruel, unfeeling and unthinking for a woman who, for instance, has been subject to gross sexual assault to think that the photographs and statements in the case and the evidence of her wound is to be circulated at the whim of the person who has done her the original offence. Of course, sensible police officers will remove the address but that is of little solace to the woman. It is wrong that children growing up and hoping to escape the memories of the crime should live in fear of paedophile and pornographic rings gaining access to material generated by bad, harsh and cruel treatment.

I repeat that the amendment is not necessarily perfect in its wording, but I ask the Minister to recognise that the problem is serious. I hardly need to ask that and of course I did not put it offensively. But can the Minister say whether there is a mechanism available to this House or to another place to put it right. At the moment defendants have access to the material as of right, keep it for their own ignoble purposes and circulate it. I propose that they have no legitimate right or interest to retain the material, which is the fruit of their crime. I beg to move.

Baroness Mallalieu

My Lords, as a practising member of the criminal Bar, I support the amendment. It is a situation I have encountered in practice on a number of occasions. I am faced with material which the accused is entitled to see and I have no means of stopping him. Indeed, I represent him and I may well have to discuss the material with him. I am concerned about his having access to the material and keeping it because I anticipate that it may be used as suggested by my noble friend Lord Williams.

Apart from the most important aspect, which is the protection of the victims, I am anxious that as there is an opportunity to deal with disclosure this is a way in which one of the current difficulties can be dealt with. It is not unusual for material to be disclosed on a counsel to counsel basis. That can lead to great difficulties and embarrassment when a client requires to see material which his counsel has been given on that basis. However, the amendment provides not merely a degree of protection and comfort for victims but has the additional benefit of ensuring that the procedure in relation to occasions when such a difficulty arises is formalised by an application to the court and a court order.

I hope that the Minister will feel that the reasoning behind the amendment is worthy of consideration and that it is a matter the Government can take up at a later stage.

Lord Carlisle of Bucklow

My Lords, I support what has been said by the noble Lord and the noble Baroness. One knows from one's own experience and practice that from time to time such horrible situations occur. Whether the amendment is the right way of dealing with it I am not sure but I hope that my noble friend will accept that there is a genuine problem. When it arises, which is not that often, it causes great anxiety and we should try to deal with it.

Baroness Blatch

My Lords, I say at the outset without reservation that in anyone's language this practice is evil and I agree that there is a very real issue to be addressed.

The amendment seeks to tackle a problem which raises fundamental issues about open justice, the rights of persons accused of serious crime to know the case against them, and the rights of victims that statements and photographs should not be used for pornographic or other improper purposes. We do not have any reliable data about the extent to which statements or photographs are misused in that way, but we know that it does happen. It is most likely to happen in sexual offence cases, as has been said, where the potential for misuse is obvious and the distress to victims is the greatest.

It is not a new problem. In 1991 the Home Office issued a consultation paper inviting views on a range of measures, statutory and non-statutory, for preventing misuse of witness statements in sexual offence cases. There was no agreement on how best to proceed. Some favoured adopting all the measures while others doubted that any effective and enforceable solution could be found which reconciled all the conflicting interests. The Royal Commission on Criminal Justice subsequently recommended that in sexual offence cases defendants should be required to return victims' statements to the instructing solicitor at the conclusion of the case. While this would go some way towards addressing the problem the Government believe we should continue to search for a more effective solution.

At a meeting with the Law Society last summer a number of options were discussed and it was agreed that further work was needed. There was another meeting only last week at which the Law Society indicated that it favoured legislation on the lines of this amendment, albeit restricted to sexual offence cases. I mention this background in order to highlight the great complexity of the mischief which is the target of this amendment.

The principle of open justice is fundamental to our system. We have international obligations to ensure that those accused of crimes receive of a fair trial. We must be satisfied that any restriction imposed on access by defendants to prosecution material would be compatible with those obligations and would not lead to miscarriages of justice. That is not a simple matter and requires further careful study

We must also avoid imposing unnecessary burdens on the criminal justice system. Procedures which require the prosecution to apply in each case to the court for an order restricting access would be very cumbersome for both the prosecution and the court. What test is the prosecutor to use in deciding whether to apply to the court? More importantly, what test is the court to use in deciding whether to grant an order? The practicality of such a system needs careful consideration, together with any options which might simplify the procedures and avoid unnecessary bureaucracy.

The amendment also makes no provision for unrepresented defendants. That is an important aspect of this issue. If one accepted the principle, with which I have a good deal of sympathy, that access by defendants should be restricted in some circumstances, how are unrepresented defendants to gain access to material on terms which it is proposed should apply to defendants who are legally represented? What arrangements are to be made for access depending on whether the defendant is in custody or at liberty? These are important practical considerations if we are to ensure that any measures which are put in place operate effectively.

Finally, the amendment does not specify what penalty is to be imposed for breaching the requirements of an order. That is an important point on which we need to be clear. One possibility is that a breach could be dealt with as a contempt of court. The other would be to create a specific new penalty. We must also be clear about who would be caught. Would it be the legal representative alone, or could penalties be imposed on those proved to be misusing material which was the subject of an order?

The Government are sympathetic to the principle of this amendment. Indeed, they have been working on proposals to create a duty of confidentiality that would protect unused prosecution material disclosed to the defence under Part I of this Bill. As in this amendment, the issues are complex. Again, any such duty would have to be compatible with the general principles of open justice. It must not restrict the accused's ability to prepare his defence, or mount an appeal or apply for anything read out in open court. Yet it must also curtail the scope for abuse. The Government hope to be in a position to introduce in another place amendments to provide for such a duty of confidentiality. To a limited degree, they might assist in protecting from misuse the sort of material covered by this amendment: but only where it constitutes unused material disclosed under the provisions of the Bill.

Much further work would be needed to develop a scheme embracing other material, especially given that in some cases it may have entered the public domain, if it has been used in open court, and given the practical questions I have outlined. Nevertheless, we do intend to continue our work with the aim of producing a workable scheme as soon as possible. There is no difference whatever between us as regards the principle of the amendment nor about the very serious practice that it seeks to address. But more work needs to be done and, in the light of that, I hope that the amendment will not be pressed on this occasion.

5.45 p.m.

Lord Williams of Mostyn

My Lords, it is disappointing that the Government have no present alternative provision to put forward. The Royal Commission on Criminal Justice reported many, many years ago. The Minister referred to open justice. Subsection (4) of the proposed new clause provides: An order made by a court under this section shall not prevent the accused from inspecting all material which should be disclosed". Therefore, the defendant has an opportunity to know exactly what is put against him.

There is no difficulty about punishment. Courts frequently make prohibition orders against the publication of material, either specifically or the statute prohibits them generally. The penalty is for contempt and may be an unlimited fine or imprisonment.

There is no difficulty about the unrepresented defendant. If he is in custody, he can see the material in a controlled environment, and if he is not he may view the material by appointment in a police station, which frequently happens at present. I give one example to demonstrate the vice. The late Frederick West killed himself before he was convicted. But had he not done so and had he retained access to photographs of people—often young children and women—that he had killed and retained the statements which were part of the prosecution case, would it be right that he could retain and feast on them and distribute them over the years to his friends and acquaintances with the same tastes? I cannot believe that to be right.

I am grateful that the Minister was able to say that the Government will produce something in another place. I am grateful for that mercy. That is not a mercy to me; it is a mercy to many others who suffer not the actuality but the fear and not knowing what has happened as regards such documents and photographs. But on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 20: After Clause 53, insert the following new clause— INDEMNIFICATION OF JUSTICES AND JUSTICES' CLERKS (".—(1) In section 53 of the Justices of the Peace Act 1979 (indemnification of justices and justices' clerks) the following subsection shall be inserted after subsection (1)— (1A) So far as the duty mentioned in subsection (1) above relates to criminal matters, that subsection shall have effect as if—

1. (a) for the word "may" there were substituted "shall", and
2. (b) for the words following paragraph (c) there were substituted "unless it is proved, in respect of the matters giving rise to the proceedings or claim, that he acted in bad faith".

(2) This section applies in relation to things done or omitted on or after the appointed day. (3) The reference in subsection (2) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State.").

On Question, amendment agreed to.

Clause 54 [Meaning of preliminary stage of criminal proceedings]:

Baroness Blatch moved Amendment No. 21: Page 33, line 21, leave out ("below").

On Question, amendment agreed to.

Clause 59 [Extent]:

Baroness Blatch moved Amendments No. 22 and 23: Page 35, leave out lines 20 and 21 and insert— ("(b) paragraphs 6 and 6A of Schedule 2, and paragraph 7 of that Schedule so far as it relates to paragraphs 6 and 6A;"). Page 35, line 24, leave out ("section") and insert ("sections (Indemnification of justices and justices' clerks) and").

On Question, amendments agreed to.

Schedule 2 [Fraud]:

Baroness Blatch moved Amendment No. 24: Page 44, line 12, at end insert— ("6A. In the list in section 17(2) (provisions extending to Scotland) after the entry relating to section 11 there shall be inserted "section 11A;".").

On Question, amendment agreed to.

Schedule 3 [Modifications for Northern Ireland]:

Baroness Blatch moved Amendment No. 25: Page 46, line 9, leave out ("and") and insert ("to").

On Question, amendment agreed to.

An amendment (privilege) made.

Baroness Blatch

My Lords, I beg to move that this Bill do now pass. It would not be an under-statement to record that this is a most complex and technical Bill. As such, it is only right that I should begin by paying tribute to the skill with which your Lordships have embraced its detail. This is all the more impressive given that we did not, I fear, get off to the smoothest of starts in our consideration of the Bill. As a lay person myself, I appreciate only too well that our task would have been lightened had the code of practice been available at Second Reading. Nevertheless, our collective effort has, I believe, served yet again to demonstrate the value of this House as a revising Chamber.

Although the Bill makes a number of improvements to criminal procedures, its main purpose is to reform the law on prosecution and defence disclosure. These reforms are underpinned by the need for our system of criminal justice to be fair, efficient and effective. Accordingly, noble Lords on all sides have given much thought to ensuring that the provisions are even handed. That is an aim which undoubtedly commands support throughout the Chamber. But that is not to say that we have not had our differences. In that respect, I wholly concur with the sentiments expressed at Report stage by the noble Lord, Lord McIntosh, that these are procedural and political, rather than personal.

I believe that the ground that now separates us is considerably narrower than it once was. Your Lordships' detailed deliberation of these important matters has thrown new light on a variety of issues. Much has been achieved in recent months through correspondence, meetings and, of course, constructive debate, for which I am most grateful.

The Bill has been amended to 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 may then bring it into operation by order, but only when the order has been approved by a resolution of both Houses. In that way, ultimate control over the code will rest with Parliament.

We have sought to ensure that the Bill achieves a proper balance by setting out the essential elements of the code of practice and leaving the detail to the code itself. That said, we have, wherever possible, given assurances to modify the draft of the code to take account of points made in debate. A further, revised draft of the code will be available before Second Reading when the Bill is considered in another place.

On Second Reading I signalled that it was our intention to table amendments while the Bill was before this House on three subjects: first, the arrangements for children to give evidence; secondly, improvements to the transfer for trial provisions contained in the Criminal Justice and Public Order Act 1984; and, finally, the difficult subject of the disclosure of material held by third parties.

In respect of the first of these, the House has made amendments to provide for binding rulings in respect of applications for children to given evidence by live television link or by means of a video recording. If such decisions can be taken at an early stage in the proceedings and if those decisions can be made to hold, there will be significant benefits for the children concerned. In addition, the Government are pursuing a range of further practical measures to improve the present arrangements for child witnesses to give evidence. Our debates have helped to identify the priorities and we shall be consulting widely with all interested groups in taking the work forward. I believe that that approach reflects the importance which this House and, in particular, my noble friend Lady Faithfull and the noble and learned Lord, Lord Ackner, attach to such issues.

Some amendments have been made to improve the transfer for trial provisions. We are currently engaged in renewed consultation with practitioners who have suggested some further technical refinements, which require careful consideration. I hope that noble Lords will agree that it is preferable for the Government to take the views of those practitioners fully into account so as to ensure that we have an effective and workable system. I am afraid that it means that some detailed, technical amendments will be needed when the Bill reaches another place.

We also had hoped to bring forward amendments on the disclosure of material held by third parties. We have consulted widely to establish what it would be possible and desirable to achieve in the Bill. But we have not yet been able to devise a scheme of third-party disclosure which covers all aspects of the problem, which ensures that the accused is afforded proper assistance to present his defence and which avoids adding to delay and complexity in the system. We have, however, identified some modest procedural changes that should have practical benefits for third parties.

Your Lordships will appreciate that this is a difficult and very complex area. Indeed, the Lord Chief Justice, having responded to our proposals for procedural change, has suggested that further consultation with the judiciary would be desirable. In practical terms, the need for further consultation will, I am afraid, mean that any necessary amendments cannot now be tabled until the Bill passes to another place.

Finally, I wish to thank all noble Lords who have contributed to our deliberations on the Bill, especially the noble Lord, Lord McIntosh. As ever, the noble Lord has been assiduous in prosecuting his case with, of course, the assistance at the Dispatch Box of his noble friends Lord Williams and Lady Mallalieu. I also wish to thank the noble Lord, Lord Rodgers of Quarry Bank, for representing his Front Bench; and, indeed, I thank my colleagues and noble friends on these Benches. I should like to express my particular thanks to my noble and learned friend the Lord Advocate who has found the time, in what I know to be an extremely busy schedule, to assist me on the Bill.

I am confident that this House, as is customary, has responded positively as a revising Chamber and, as a result, will despatch to another place what I believe is a much improved Bill.

Moved, That the Bill do now pass.—(Baroness Blatch.)

Lord McIntosh of Haringey

My Lords, this has been something of a roller-coaster of a Bill. It started in a very friendly sense in that I hope it was clear—indeed, we tried to make it so—that we support the principle behind the Bill. Our amendments and our deliberations were intended to make the legislation work better rather than to oppose it. I do not believe that the Minister or anyone else would say that our attitude towards the Bill has been what the Deputy Prime Minister called being on the side of the villains.

We then had a certain number of little local difficulties in the sense that, as the Minister rightly said, the code of practice was produced very close to the Committee stage rather than soon after Second Reading. In addition, the Government tabled virtually 100 amendments in Committee, a very considerable number of them on Report and, indeed, quite a few on Third Reading. The result is that the Bill which started out with 35 pages now has 55. Therefore, I believe it could be argued that we are not now dealing with entirely the same Bill as we were at an earlier stage of the proceedings.

The difficulty that we had in Committee was, first, the fact that the code of practice which is an integral part of the Bill—indeed, Part II of the Bill is wholly concerned with it—was not available in time. Secondly, we had not really worked out between us ways of debating that code of practice adequately; and, thirdly, there was no provision, despite the recommendations of the Delegated Powers Scrutiny Committee, for the code of practice to be subject to parliamentary approval.

I am not sure whether we have yet worked out a way to debate codes of practice which are not included in legislation. I have now tried two ways of doing so—first, by writing it into the Bill as a schedule and then amending it myself as, indeed, I did on this and earlier occasions; and, secondly, by attempting to put, on the face of the Bill, as it were, the amendments which we would seek to make to the code of practice. Perhaps a future solution would be for the Government to table a code of practice as a schedule, thereby making it open for debate and amendment, with a view to taking it out at the end so that it would be subject to parliamentary debate, although it would not be subject to the rigid procedure of primary legislation. I do not know the answer. Perhaps the Procedure Committee would like to consider the issue.

However, I do know that such Bills which rely on codes of practice—and many do—ought not to be introduced without the code of practice being available. Further, they ought not to be published without amendments—which, as in this case, were clearly in preparation before the Bill was printed—being included on the face of the Bill. Such amendments should not have to be made in Committee, on Report or even, as the Minister just acknowledged, later when the Bill goes to another place.

Nevertheless, there have been some improvements during the course of the debates, although not all of them appear on the face of the Bill. First, and most important, the recommendations of the Delegated Powers Scrutiny Committee about parliamentary approval and consultation were accepted. Secondly, there were considerable improvements promised in the draft code—such as, reconsideration of the role of disclosure and investigation officers, the retention of draft witness statements and the recording of information as soon as practicable. Thirdly, there were also improvements in the way that the retention of material, such as samples, should be legislated for, and, as the Minister just said, there will be further amendments on transfer for trial.

We still believe that there are great problems with the relatively clumsy and rigid procedures proposed in the Bill. The high level of disclosure, both from prosecution and defence, will cause difficulties and extra work, even though we acknowledge that it is intended to reduce the burden which is perceived by the Government. We still think—and this is extremely important—that the procedures involved in the Bill will provoke unnecessary "not guilty" pleas in order to get sight of primary disclosure. That, in turn, will clog up the magistrates' courts.

In our view, the application of the code of practice to other investigating authorities and to those assisting them is still unclear and inadequate. We are not satisfied with the power given to the prosecuting authorities to make adequate decisions about sensitive material. Indeed, we are certainly not satisfied that the Bill goes forward without the Government having achieved agreement between police forces as to the length of time for which material shall be retained.

However, that is life. That is what these Bills are like. Some of the measures we argued for have been accepted with relatively good grace; some of the measures we argued for have been rejected with a measure of understanding; some appear to me to have been rejected without any real understanding at all. Nevertheless it is a pleasure once again to see the noble Baroness, Lady Blatch, at the Dispatch Box as we did when she was the Minister in other departments in the past. After our initial difficulties, I pay tribute to her hard work, to her understanding of the issues although she is not a lawyer, and to her courtesy throughout in supplying us with information and explanations.

I welcome the noble and learned Lord the Lord Advocate to the Dispatch Box where he has proved himself a natural from the beginning. I am grateful to my noble friends Lord Williams of Mostyn and Lady Mallalieu for their assistance at all stages of the Bill. I am grateful, too, to our research assistant, Claire Cozens, to Roger Ede of the Law Society, to Anne Owers and Razia Karim of Justice, and to others who have taken the trouble to inform us of their anxieties with the Bill. We have had the pleasure of listening to many lawyers—too many to name—from all sides of the House, and also to the noble Viscount, Lord Runciman of Doxford, who chaired the Royal Commission. We are grateful for his incisive contributions at all stages of the Bill. There is still plenty of work for the House of Commons to do. I wish it well with the Bill and I hope that it will produce, in the end, a Bill which maintains the essential balance in our adversarial system between prosecution and defence so that the guilty are convicted and the innocent go free.

6 p.m.

Lord Rodgers of Quarry Bank

My Lords, the noble Baroness, Lady Blatch, said that we did not get off to the smoothest of starts. However, we got off to a good start at Second Reading. Noble Lords on all sides of the House made clear their wish to make progress with the Bill. However, as the noble Baroness later implied—and as the noble Lord, Lord McIntosh said—there were some rather fractious and unhappy events on 19th December. We were all relieved when we were able to put that behind us.

There are lessons to be drawn from the progress of the Bill. I still take the view—although I do not hold the noble Baroness responsible—that the Bill should never have been introduced into your Lordships' House given the early stage of preparation at which it proved to be. As the noble Lord, Lord McIntosh, said, there were over 100 Government amendments at Committee, and I believe there were over 60 at Report stage. The Bill goes forward not in its final form so far as the Government can make it so but in the clear knowledge that there will be a need for further amendments in another place.

The noble Lord, Lord McIntosh, referred to the code of practice. Our main argument on 19th December was whether the code then represented the policy of Her Majesty's Government or whether Her Majesty's Government were somehow neutral about it. The impression was then given—I think this gave rise to the problem which we sought to overcome—that Her Majesty's Government were indeed neutral about it at that stage. However, as the noble Baroness, Lady Blatch, later made clear, it was at that time the Government's best view of the proposal that should be included in the code of practice notwithstanding, as we all understood, that further consultation would have to take place. My own conclusion, both from the state the Bill was in when it started, and the state it is in now, is that your Lordships would have been able to scrutinise it much more completely and much more satisfactorily, and we would have avoided some of the fraught discussion which occurred, if the Bill had been delayed before presenting it to your Lordships until it had been more fully prepared.

I see no remedy for my next point within the immediate future. I conclude that although there were important differences of opinion on the Bill, and although it was the duty of the Opposition parties to seek to represent the views of those outside the Chamber 'with important points to make, it was never a Bill which divided both sides of the House strictly on narrow party lines. For that reason I wish we had a means by which a Bill of this kind, although controversial, could be dealt with in a less adversarial way. Unfortunately, circumstances oblige us to deal with it in that way. It would have been far better if we had been able to prepare ourselves on a different timescale for some of the problems with which we were confronted at a later stage.

However, that having been said, I am most grateful for the considerable efforts made by the Minister, and all those who advised her, to try to meet the needs of the House on many extremely detailed matters. In a slip of the tongue she attributed to me a learning which I do not possess. However, there were times when I thought that the noble Lord, Lord McIntosh, might indeed have been referred to as a noble and learned Lord. I pay tribute to the skill with which he, as a non-lawyer, dealt with many of the detailed matters which came before the House. It is a better Bill than it would have been and that is reassuring.

Lord Campbell of Alloway

My Lords, may I briefly say this—

Noble Lords

Good heavens!

Lord Campbell of Alloway

Yes, my Lords, good heavens! I have been involved with this Bill at certain times and I wish to say a few words about it. It is an important Bill and an interesting Bill because we did not really discuss it on party lines. That is interesting. However, the greater importance of the Bill is that it has established temporarily a form of procedure which we never had before; that is, how we are to deal with codes of practice in this House. This is of general application. The importance of the Bill is that across party lines an agreement was reached that we had to do something. We have done something and now someone has to devise an accepted way of dealing with such matters on all future Bills.

Lord Ackner

My Lords, I wish to pay tribute to the painstaking care with which the noble Baroness has approached this complex Bill, and for the understanding which she showed to the difficult problem raised by the noble Baroness, Lady Faithful], about the evidence of children on which there is a not totally consistent judicial view. I also wish to add my congratulations in regard to the noble and learned Lord the Lord Advocate in two matters: first of all, his confession that he has a cardiac region and, secondly, that in regard to an irresistible but microscopic amendment of mine, it was operating in my favour.

Lord Renton

My Lords, I should like to endorse the tributes paid to my noble friend Lady Blatch and, indeed, to the noble Lord, Lord McIntosh, and the noble Lord, Lord Rodgers. It is interesting that the Bill in a sense is a lawyers' paradise but the three leading Front Bench spokesmen are not lawyers, although hearing the discussion one would never have realised that. This is about the twelfth Bill in the past 50 years dealing with the procedures of our criminal courts and of those who have to work in them. All those Bills have really been experimental and necessarily so. I am using hindsight when I say that because it was not generally acknowledged at the time. I think it realistic to say that this Bill is, to some extent, experimental too.

These Bills have to be judged, I think, by a number of criteria. I shall quickly mention them and say to what extent this Bill meets them. Does it enhance the public interest? Yes, this Bill does, and it clarifies the rather delicate question of the public interest immunity certificates. It does that well. Does it make it more likely that guilty people will be convicted? Yes, it does. Does it make it more likely that innocent people will be acquitted? Yes. Will it reduce the length of court proceedings? That is very doubtful. Will it reduce their cost? We have to wait and see.

On Question, Bill passed and sent to the Commons.