HL Deb 14 July 2003 vol 651 cc715-54

8.34 p.m.

House again in Committee.

Clause 33 [Notification of intention to call defence witnesses]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Dholakia

The clause inserts a new Section 6C in the 1996 Act, which imposes a new requirement on the accused to serve, before the trial, a notice giving details of any witnesses he intends to call to give evidence at his trial. Details of the witness's name, address and date of birth must be given to the court and to the prosecutor within a time limit specified in regulation made under Section 12 in the 1996 Act.

There have been a number of adverse comments, particularly from the Home Affairs Select Committee, which said that it is perhaps the most controversial provision of Part 5 of the Bill. At present, the defendant is required only to give advance disclosure of any alibi or expert witnesses. Clause 33 will extend that obligation significantly by requiring disclosure of the name, address and date of birth of every defence witness.

In a recent article, Michael Zander QC sets out a powerful argument: If the addresses of potential defence witnesses have to be given, the obvious danger is that police will use the interview to browbeat and cajole or wheedle the witness to change his evidence or, failing that, not to testify for the defence". It is not too difficult to imagine ways in which the police may seek to help a defence witness to "refresh" his memory, possibly to "lose" his memory, of events. Such things have happened in the past. During the Home Affairs Select Committee's recent inquiry into the conduct of investigations into abuse in children's homes, it came across a number of cases in which the police were said to have brought charges against a defence witness before trial in order to discredit him.

Coming from the Home Affairs Select Committee, that is a very powerful argument against the clause. It is important to recognise the recommendations the committee makes. It suggested that the Bill he amended so that where the prosecution wishes to interview a defence witness in advance of trial, it should be required to notify the defence and offer to interview the witness in the presence of the defence. It further suggests that any interview should be tape-recorded. It goes on to say that it would prefer to see a provision of this nature included in the Bill rather than left to codes of practice.

A number of criminal justice agencies have responded very strongly to the proposal that the defendant should provide witness details before trial. Justice comments that, an adverse inference being drawn from a failure to do so will fundamentally undermine the presumption of innocence in the right of an accused person to remain silent". The Bar Council says, Clause 33 places an unnecessary burden on the defence which does nothing to improve the prospect of conviction of the guilty and has a number of deeply undesirable consequences". The Law Society cannot see any benefit in this provision, but does anticipate difficulties, as do a large number of other organisations. The London Criminal Courts Solicitors' Association says: The proposals that such a witness notice should he served during the relevant period demonstrates a lack of understanding of the practicalities of running a defence case". Those are very strong arguments against the clause.

Baroness Mallalieu

I, too, have concerns about the way in which the provisions are intended to operate. I would be very grateful if the noble and learned Lord could give me some guidance as to what is being aimed at by the provisions.

We have gone a long way towards making it easier for witnesses to come to court and to give evidence in relation to prosecutions. We have taken steps to make it easier for them to give evidence via video links and the like to try and avoid their hanging about at court and being subjected to unnecessary or insulting cross-examination. If our intention is to ensure that witnesses come forward to give evidence so that the correct result is obtained, we should apply the same standards and give the same assistance to potential defence witnesses.

These provisions achieve, in a sense, quite the opposite. A criminal trial is dynamic and changing all the time. When one first receives the papers, one gets some indication of likely witnesses. At a later stage, it may be clear that some of them are no longer necessary. As the trial proceeds, witnesses for the Crown and the defence are jettisoned because their part of the evidence no longer becomes contentious, it no longer seems relevant, it has been admitted, or whatever. Therefore, the witnesses you believe you are going to call before the trial starts ultimately may play no part at all.

Is it proposed that once the names and addresses and the other details of the defence witnesses are given to the Crown, those people are to be seen and interviewed by police officers? If so, there will be a large amount of wasted police time, with witnesses who ultimately play no part whatever. If there is intended to be parity between the Crown and the defence, it is curious that the addresses of the witnesses for the Crown are not given to the defence, although the defence is required to provide addresses to the Crown.

We have all heard of cases in which witnesses have been interviewed by police and often witnesses who one would not necessarily choose because they may be young, or have convictions, or may have been close to the incident. That is likely if, for example, they are witnesses to an assault, an affray or even a murder. It is easy, particularly for young witnesses, and those who sometimes have little command of English, to find it intimidating to be interviewed by anyone. It is difficult enough to persuade those witnesses to see a defence solicitor to take a statement without having a police officer knock on the door and ask to do so in their home.

While I welcome the outline of the code of practice, which we will debate at Amendment No. 126, that does not specifically provide for a solicitor to be present. Those of us who practise in the London courts have had experiences of an unfortunate nature, where youngsters have been interviewed without anyone else present, where the parents speak no English, and where they have been cross-examined by a police officer, often armed with pieces of information which at a later stage will properly be used by counsel in court. In effect, they have been browbeaten in their own homes into making a statement based on material they are shown and without proper legal advice. The result is that the statement is taken which either changes the story that had been given earlier or results in the witness saying, really can't remember". When the witness turns up at court, that statement is used against him.

There is considerable scope—I do not say this pejoratively—for police malpractice. In unscrupulous hands, the right to go and interview a witness, particularly a young or vulnerable one, without proper safeguard, would be a most powerful weapon in the hands of an unscrupulous prosecutor.

Leaving that aside, with the best will in the world, the most pleasant and amiable police officer knocking on the door, often in an area where the neighbours will be well aware of what is happening, wanting to know who is coming round and why, is enough for many parents to say, "I'm not letting my youngster go. I don't want anything to do with this. We will not allow him to attend court". There are all kinds of reasons why these provisions might prevent genuine witnesses coming forward—the very thing we try to avoid in relation to the Crown.

Furthermore, I had understood that notwithstanding the provisions of the Bill, the burden of proof remains on the Crown. What is the obligation, at any rate before the Crown makes its case in court, for a defendant to provide material? If there is a suggestion that these provisions are intended to deal with what I have heard about in this House but never come across in a courtroom—the so-called "ambush" defence—I can say only that the other provisions in the Bill which require considerable detail to be given in advance disclosure in statement form would surely put paid to any such ambush. Therefore if it is intended to put a burden on the defendant in some way at an early stage and before the Crown has called any evidence, it seems to me that that is a fundamental attack on the burden of proof. I would hope that the noble and learned Lord would be able to tell us what the reason is for this provision. Is it intended to interview all witnesses whose names are provided in this way? If that is not the case, what is the point for what would appear to be needless bureaucracy?

Lord Brittan of Spennithorne

During the course of the deliberations on this Bill, the word "balance" has frequently been prayed in aid. It is a reasonable concept to use in the handling of these matters. Therefore in looking at this provision it is reasonable to do what the previous speakers have done and try to weigh the benefits to be secured by this provision against the risks and dangers that flow from it. I have to say that I find myself wholly persuaded about the risks and not anywhere near being persuaded about the benefits. On the so-called ambush defence, what evidence is there of its use and how frequent is it? And what will be done with the material required as a result of this provision?

In a sense it is unfair to ask the noble and learned Lord to answer that question. All that this does is to require something to be done. The use that it is then going to be put to is out of the hands of this Chamber and of the legislature. Therefore, one can but speculate. But to speculate that the consequences would be unfortunate and unfair is not an unreasonable form of speculation. A witness who might have been persuaded with great reluctance to appear for the defence might take a very different view if he knew that he was instantly going to be given to the prosecution to be interviewed. That is not a far-fetched fear; it is one that makes sense for anyone who has had even the smallest contact with the criminal justice system over the years.

The bureaucracy that will arise is very real if the provision is used in any significant way. Without wishing to be unduly contentious at an inappropriate time, the other provisions in this Bill do not give me confidence in the Government's intentions. Their concept of balance is insufficient to give them the benefit of the doubt.

Lord Renton

I do hope that your Lordships will forgive me for intervening. I missed the first few minutes of this debate. There is one point on this clause which worries me. There is an obligation upon the defence to notify the intention to call witnesses. But must the defendant call those witnesses if he decides ultimately that there is no need for them to give evidence?

Baroness Kennedy of The Shaws

My noble and learned friend referred to Lord Justice Auld's report. He prayed it in aid to support the contention that the defence statement was not working. I would like to quote Paragraph 180 from that report. As to the defence statement…the present requirements, if observed, seem to be adequate to enable identification of the issues…for the purpose of determining the scope and form of prosecution evidence required for trial. I have considered whether to recommend any additional requirements, for example, a general obligation to identify defence witnesses and the content of their expected evidence similar to where the defence is alibi or it is intended to call expert evidence for the defence. Whilst, as a matter of efficiency, there is much to be said for them, many would find them objectionable as going beyond the definition of the issues and requiring a defendant to set out, in advance, an affirmative case. And they would be difficult to enforce". And so Lord Justice Auld did not recommend anything more than we have at present. Obviously one would like to see the defence statement observed more effectively, and that is down to the management of the courts by the judges. But Lord Justice Auld certainly did not suggest that there should be disclosure of defence witnesses and the contents of their expected evidence.

In the face of that feeling that the provision would be objectionable, I should like to hear from the Minister why the Government somehow find it unobjectionable. As my noble friend Lady Mallalieu said, it is objectionable because potential defence witnesses are often the very people who harbour, rightly or wrongly, a deep mistrust of authority and of the police in particular. Knowing that their details will be disclosed and that they may be investigated and interviewed by the police will provide a very powerful incentive for them not to come forward to assist the defence. That then deprives the defendant of relevant truthful evidence that might exonerate him. It is not a sufficient answer to suggest that the defendant would have the option of taking out a witness summons.

Therefore, in that situation there would be an erosion of the very delicate relationship that exists in order for the criminal justice system to function well and properly. Indeed, there is a very real risk of interference by the investigating authorities in the due administration of justice, and there is scope for intimidation of the witness by an over-zealous, or even unscrupulous, police officer. Therefore, we press upon the Minister our concerns, which are shared by professionals with many years of experience in the criminal court and the judiciary. We ask the noble and learned Lord to explain to us why, in the face of those concerns about this provision being objectionable, the Government are pressing on.

Baroness Anelay of St Johns

I do not have an overall hostility to the clause, but I agree with the noble Baroness, Lady Mallalieu, that there are some serious questions of procedure and practice here which need to be probed and which the Minister needs to clarify today. 1 agree with my noble friend Lord Brittan that the application of the provision will be out of the hands of this House once the Bill is enacted.

Reference has been made to the amendment in the name of the noble Baroness, Lady Scotland of Asthal—a government amendment—which follows Clause 38 and introduces a new clause concerning a code of practice for police interviews of witnesses notified by the accused. I hope that when the Minister comes to deal with that, he will bear in mind my concerns, which relate closely to the operation of Clause 33.

Reference has already been made to the fact that, because it is a code of practice, it is not on the face of the Bill in detail. However, the problem is that, in relation to the code of practice in the new clause, proposed new subsection (2) states: The code must include (in particular) guidance in relation to", such matters that include, the attendance of the accused's solicitor at such an interview". That is where the root problem occurs. One needs more than guidance; one needs assurance of that fact.

At the end of the list of items where guidance will be given, it is stated: Any police officer who arranges or conducts such an interview shall have regard to the code". When we go into something as significant as that, I believe it is necessary for the Government to reconsider the words "shall have regard to". Why should there not be a duty upon police officers to abide by the code? I know that that takes us forward to the government amendment, but I believe that it has a great bearing on how acceptable—or unacceptable—Clause 33 is in its operation.

Lord Goldsmith

I am grateful to those who have spoken in the clause stand part debate. I want to emphasise what the clause is not about before coining to what it is about.

My noble friend Lady Kennedy of The Shawls quoted from Lord Justice Auld's report. I remind the Committee that the passage that Lord Justice Auld was considering referred to the proposition that an additional requirement might be imposed. The report said that there would be a general obligation to identify defence witnesses and the content of their expected evidence". I am reading from paragraph 180.

We have not proposed that the content of defence statements should be included. Lord Justice Auld's comment, which was carefully considered by the Government and taken into account, has been accepted to the extent that we have not sought in the clause to impose an obligation to disclose the content of defence statements. It is limited to the identification of the name, address and date of birth of each such proposed witness. They are the identifying details. That is what the clause is about.

Secondly, in answer to the question raised by the noble Lord, Lord Renton, it does not bring with it an obligation on the defence to call a witness who has been identified as someone they want to call.

Lord Renton

I thank the noble and learned Lord for giving way. If that is so, should it not be stated?

Lord Goldsmith

I do not believe that it needs to be stated because the only sanction that is provided is one in relation to a defence when the defence calls a witness of whom it has not given notice. There is no possible sanction in relation to the defence not calling a witness. Clause 38, which sets out what the sanctions are, identifies under subsection (2)(f)(iv) that there may be a sanction in terms of an inference being drawn where the defence calls a witness of whom notice has not been given. But there is no suggestion of a corresponding sanction where it does not call such a witness.

Baroness Kennedy of The Shaws

There are two matters on which I should like assistance. First, it may be that one is only asking that the defence discloses names and addresses, but what is the purpose of the interview if not to find out what the witness will say? Therefore, the content is ultimately disclosed in advance as the interview would be to no purpose if it were not to discover what the witness would say.

Secondly, the Minister said that there would be no sanction. One knows that if the accused gives evidence, the defence will be asked, "Are you calling Jimmy McGillycuddy, or Johnny Smith?". The list will be put to him and fun will be made of the fact that he may say that he does not know, or that he does not think they are being called. The jury will know that if they are not called, there must be some rationale for that.

Capital will be made by the Crown by its having that list available to it.

Lord Goldsmith

The latter happens already. It is commonplace that a defendant gives evidence that on such and such an occasion, events happened in the way that he said they happened. He will be asked, "You say that X, Y and Z were there. Are they coming to give evidence?". That is a point that is perfectly open to be taken as it stands. There is nothing new about that.

I am anxious to develop the points that I am making, although I am always happy to give way. On my noble friend's former point, in paragraph 180, Lord Justice Auld appears—it is always dangerous to construe what a judge has said—to have talked about a requirement on the defence to disclose not only the identity but the content of the statement that had been received from the witness.

My noble friend Lady Mallalieu dwelt on the circumstances in which the interview takes place. I shall come back to that point, as it is extremely important and in my respectful view the real and only point in relation to the clause. If in the course of that interview, the witness says what happened and that exonerates the defendant, it is a good thing that that has come out at an early stage. One presumes that the witness is someone who will give evidence in court and is happy in those circumstances to stand up and say, "This is what happened. It was not the defendant's fault".

I see a great difference between requiring the defence to disclose the statements it has taken and simply providing that, in certain circumstances, it should be open to others to interview that witness to discover what is said. In the courts of this land it has always been said the there is no property in a witness. That must be right. My noble friend Lady Mallalieu said that prosecution witness names and addresses are not given. That is right, but if the defence wants to interview a prosecution witness, it can always make inquiries through the good offices of the prosecutor in the CPS.

I will now turn to the purpose of the procedure. There is nothing conceptually new in what is being done. It is already the law that the defence is required to provide advance notice of two categories of witness—alibi and expert witnesses. The proposed procedure builds on that and is not a radical departure from existing legislation. Noble Lords who have spoken so far have not complained that the police currently browbeat or intimidate alibi or expert witnesses or prevent them giving evidence. Perhaps some anecdotal evidence will be given, but I have not heard any yet.

9 p.m.

Baroness Mallalieu

I thank my noble and learned friend the Attorney-General for giving way. It is precisely because of the experience with alibi witnesses that I raised my concerns. It is a matter of great concern. Those of us who practise in the courts have certainly had experience of this on a number of occasions. Some cases have ended up in the Court of Appeal. They arise because police officers, often without any warning, knock on the door of the house and interview a young person without any responsible person being present—certainly no solicitor or legal advice is available. The system does not work well, which is the very reason why I am grateful that there will be guidance. It is much needed. The system is by no means perfect.

Lord Goldsmith

I am grateful to my noble friend Lady Mallalieu. I will come to the guidance in a moment because, as I hope the Committee will agree, it gives a substantial degree of protection about the real point of the clause—the circumstances in which such an interview would take place.

The clause would deter the calling of surprise witnesses and help avoid adjournments and the concomitant delay to which that gives rise. It would help weed out inadequate, incomplete, or false defences. It would enable the police, without making any interviews, to check the criminal records of defence witnesses so that the jury would be able to use that information if they saw fit, to assess credibility. In certain cases, if appropriate, it would allow the police to interview defence witnesses before the trial and make further inquiries. Those interviews may even assist the defence as well as the prosecution.

I cannot say how often that will happen, but I strongly suspect that, in many cases, the witnesses who will be identified by the defence as people it wants to call will be people already known to the police in the sense that the police would have interviewed them before. It is quite likely that the defence has their identities because they form part of the unused material that has been disclosed by the prosecution. That is entirely proper: the prosecution has seen those witnesses and does not think that they would help its case; the defence wants to call them. The police and the prosecution will know what those witnesses are going to say, so it is unlikely that any further steps will be necessary, but at least they will know what is to be said. As I said, there is nothing conceptually new about that.

Two things happened as a result of the full debate that took place in Committee in another place. First, the clause as drafted would have required the defendant to give notice of an intention to give evidence himself or herself. That has been changed. We agree that that would be inappropriate; we have accepted that point. The second is to deal with what I suggest is the only significant objection that has been raised here: the risk that the police might be given the opportunity to put undue pressure on defence witnesses.

In what I am about say, I do not accept the basis of that, but important protection is provided in the amendments, which would give rise to a new clause enabling a code of practice to be made governing the conduct of police interviews with defence witnesses disclosed under the new arrangements. That will provide a substantial safeguard. An undertaking was given in another place to introduce that provision and the amendments will discharge that undertaking.

I know that we shall come to them later, but let me identify what the amendments will do. They will require the Secretary of State to consult chief police officers, the Law Society, the Bar Council and the Institute of Legal Executives before issuing the code of practice or any revisions; a significant degree of consultation is anticipated before the code will be finalised. A number of practical issues will require careful thought. It will then be brought to this House and another place for consideration. The initial code will be subject to the affirmative resolution procedure, and the affirmative procedure may also apply if the code is revised.

We have produced a first draft of such guidance, which was sent by letter by my noble friend Lady Scotland to Members of the Committee. It includes provisions that address concerns that have been raised—I understand why—today. For example: what about somebody simply going around and knocking on the door without notice? The guidance would require a police officer wanting to interview a witness first to notify the accused's legal representative and to invite that person to be present at the interview.

It would also require a careful and accurate record to be made of that interview, advising the witness in advance that a record will be made and copying it to both the witness and the accused. So the accused will have a record and if there is any question of anything wrong being done during that interview—of undue pressure—the record will stand for the court's consideration. The record will also be seen by the witness, so that he or she can also check that it is accurate.

Where the accused is not legally represented, the police officer will have to inform the accused that he intends to interview the witness. The code will probably provide that he will then invite the accused to appoint a legal representative to be present at that interview. Special provision is proposed for witnesses who are juveniles, mentally disordered or otherwise mentally vulnerable, with a recommendation that an appropriate adult should be present during the interview.

Those, then, are the principal provisions of the indicative draft code.

Baroness Anelay of St Johns

I should make it clear that neither I nor my noble friend Lord Hodgson of Astley Abbotts have had sight of the draft code. I am sure that it is simply the fault of the post going astray, but it means therefore that I shall make no further comment today on the code of practice when we reach the government amendments. I shall have to reserve my position until the Report stage, when I will have had an opportunity properly to consider the paper that perhaps has gone to others.

Lord Goldsmith

Of course I accept entirely what the noble Baroness has said. I had understood that the noble Baroness had received the letter; indeed I have here a copy of the letter that is addressed to her. I understand that she is not in a position to give a detailed response, but I hope that what I have said about the substantial provisions—we are not debating the code at this stage—at least indicates that the Government have taken the concerns into account and propose a code of practice which will address and deal with them. I refer in particular to the principal objection, which is the risk that witnesses will be dealt with in an improper way.

I hope that in the course of my remarks I have dealt with the points raised by noble Lords. There is a difference of philosophy between certain people. I understand that Professor Michael Zander has never been in favour of any defence disclosure. I do not criticise him for that; it is a perfectly respectable point of view, but it not one that Parliament took in 1996 when it passed the Criminal Procedure and Investigations Act 1996 and it is not one with which this Government agree.

Lord Brittan of Spennithorne

Does not the Minister realise that he is making it more difficult for people to go along with what he proposes because in fact he is giving considerable weight to the argument for the thin end of the wedge? When proposals were put forward and enacted requiring the disclosure of alibi and expert witnesses, those were definitely presented as exceptions to the norm. They were exceptions to the rule; because of something in the particularity of those defences, it was reasonable to ask the defence to provide certain details. To declare now that because those exceptions were admitted, conceded and enacted, the past has been sold and we can generalise on it, makes any future argument that what is being done is only minor and exceptional one that will be increasingly difficult to accept.

Lord Goldsmith

It is gratifying to see that the noble Lord has not lost his skills as an advocate. In what I have said this evening I have never advanced the argument that because something was done it means that we can do more. The noble Lord, Lord Dholakia, drew attention to and placed reliance on what has been said by Professor Zander. I simply indicated in response that Professor Zander has always approached this from a different point of view. I believe that I am right in recalling that he was in the minority on the Runciman Royal Commission.

Of course the amendments to the defence disclosure code being put forward by the Government have to be considered on their merits. I seek to put forward what are those merits. As I have said, I sought simply to indicate that people have approached this from different points of view. There is a point of view which holds that there should be no disclosure at all by the defence, and there is a point of view which holds that that principle is not right. In these clauses we can consider what that detail should be.

I appreciate that I have spoken for some time on this clause. Finally, nothing in this clause or in the other provisions changes the burden of proof.

Lord Renton

Thank goodness.

Lord Goldsmith

The noble Lord, Lord Renton, and I agree entirely on that—a point made sotto voce by the noble Lord from a sedentary position. I do not disagree with him at all: the burden of proof will remain with the prosecution. The fact that the defence has had to give notification on certain points on which it takes issue with the prosecution and the fact that, under this clause, it will have to provide the names of the people it intends to call as witnesses, does not take away from the fact that it will still be for the prosecution to prove the case. That remains, and rightly so.

9.15 p.m.

Lord Dholakia

I am grateful to the Minister. As with Clause 32, I am sure that we shall come back to this issue on Report.

Clause 33 agreed to.

Clause 34 [Notification of names of experts instructed by defendant]:

Baroness Anelay of St Johns

moved Amendment No. 112: Page 22, leave out lines 37 to 39.

The noble Baroness said: In moving Amendment No. 112, I shall speak also to Amendments Nos. 113 to 116, 118, 119 and 241.

Amendment No. 112 is a simple drafting amendment. It leaves out subsection (2) because we simply cannot understand why it is necessary. It appears otiose and I would be grateful if the Minister could explain why it is vital to the Bill.

Amendment No. 113 goes to the heart of our objections to the provisions of Clause 34, which imposes a new requirement on an accused to serve before the trial a notice giving details of the name and address of any expert witness consulted, even where that expert witness is not then called. This is the step too far. The noble and learned Lord has explained how we need not worry about the exercise of any of these clauses because this is nothing much of a change; it is a rather rational, pragmatic development. As far as we are concerned, this is not so much a step change as a jump off a cliff. The clause widens considerably the disclosure duty imposed on the defence, which already has to give details of any expert witness it proposes to call to give evidence.

Our amendment represents a compromise to our objection to the clause. It prescribes that if the evidence of a witness is not relied upon by the accused, and no copy of that witness's report has been served on the prosecution, no reference should be made at the trial to the fact that the defence had originally instructed the expert witness. Without this compromise we would find Clause 34 unacceptable.

I am grateful to the London Criminal Courts Solicitors' Association for its briefing. It points out that in order to give expert opinions of substance. instructing experts requires openness both with the legal adviser and with the client. Almost invariably experts will be given legally professionally privileged material. They can be instructed for a variety of reasons, including on areas of cross-examination, in complex areas of expertise.

I come back to the question which was asked in a slightly different context during the debate on the previous clause: why should the prosecution require a notice specifying the name and address of the person instructed with a view to his or her providing any expert opinion for possible use as evidence at the trial of the accused? One can only assume that it is to enable the Crown to approach such witnesses and to obtain details of the opinion sought. We would argue that that would threaten to disclose legally professionally privileged material. That could not only compromise the expert's integrity but also derail trials following applications for stays of proceedings on the basis of abuse of process.

It is also possible that the new measure would deter practitioners from seeking more than one source of advice. I am sure there is nothing wrong per se in doing that. It would deprive the accused of expert advice and weaken the independence and vigour of the accused's defence representation. There may be justifiable reasons for approaching more than one expert; there may be nothing shady or dodgy in doing so. For the prosecution at a subsequent trial to try to draw adverse inferences from the fact that one has been to more than one expert would be very retrograde. There can be justified differences of opinions among experts—in the medical world that is not uncommon. It could be that someone has sought expert opinion and that opinion has simply turned out to be wrong.

We are concerned about this provision. We are seeking a way forward through compromise. As the clause stands, our compromise is that the prosecution should have the information about the expert but that that information should not be used to draw adverse inferences during the course of the trial.

The Government have had long warning of this compromise. It was debated in another place at the beginning of this year and so they have had half a year to consider it. I hope that they have reflected well. I am certainly aware that many of my colleagues think that I am being far too generous to the Government in making this kind offer of a compromise to them. Of course, I am always sweet reason, particularly at this time of night.

I can be extremely brief on the last group of amendments. The other five are all consequential on Clauses 33 and 34 standing part of the Bill. I have tabled them for completeness. I beg to move.

Lord Carlisle of Bucklow

May I support most strongly my noble friend Lady Anelay on this amendment? I ask the Attorney-General what is the purpose of this new clause. It states: If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence al: the trial of the accused, he must give to the court and the prosecutor a notice specifying the person's name and address". If he is intending to call the expert witness whom he has approached, then his reason is now required in the law as I understand it, that he should disclose that evidence to the prosecution when the expert is called. But if he consults an expert whom he chooses not to call and does not intend to call, what is behind the suggestion that he should be required to give that expert's name and address to the prosecution?

For the purpose of this argument I am prepared to accept that the Attorney-General is correct when he says that the Lord Chief Justice was wrong in saying that if the prosecution went to four experts and they intended to call two of them, they would not be required to disclose details of the other two. As I understand it, I believe that under the rule of unused evidence they would be required to disclose the names of the other two experts.

But that totally ignores the whole issue of the burden of proof in a criminal trial. If a person is charged with an offence and those on his behalf choose to go to an expert who says, "I am sorry, I cannot help you" or says, "I am even more strongly against you than the prosecution expert has disclosed in the depositions", what use is the prosecution then going to make of that statement? Is it intended that they should take a statement from that expert? If so, is it not almost obvious that they will be faced with the problem of professional privilege? Are they going to attempt to obtain evidence from the expert of what he has been told by the accused, which they could not get otherwise because it would be covered by professional privilege'? If he goes to a doctor with a defence of diminished responsibility and the consultant says, "I do not think that your client is of diminished responsibility", presumably that would be based on evidence he has learnt through professional privilege from the solicitor, from the client.

What is the other possible use of knowing the name and address of the unused expert? Presumably, it is to ask the defendant when he goes into the box, "Tell me, did you go to see professor so-and-so in his rooms in Harley Street on 10th December?" "Are you going to call him?" "No". What would be the purpose of that? Would it be an improper line of cross-examination or would it merely be to sow the seeds that there is an inference to be drawn from the fact that he is not going to call his expert?

I have kept quiet on Clauses 32 and 33 I have listened with interest to what the Attorney-General has said. I am away from it now, but I understand that there is a lot of complaint about the time taken up on the disclosure procedure and that in fact the fault is not all on one side. On any view it seems to me that it is going too far to ask the defence to express, expose or give the name and address of any expert that they have chosen to consult. I shall be grateful to hear the Attorney-General's justification for such a change.

Baroness Kennedy of The Shaws

I, too. would like to express concern about these matters in this Bill. I want particularly to raise concerns about the impact of this sort of change. I sometimes wonder whether governments embark on change without understanding the long-term impact that some of the changes might have on the ecology of the legal system, doing huge damage without thinking through areas of change. The temptation for some defendants would he to instruct only those experts who could be guaranteed to express an opinion favourable to the defence. Such a breed of tame defence experts would be an inevitable, unattractive and unwelcome feature of the criminal justice system. I ask the Government to take into account the way in which there are unforeseen consequences of what looks like reasonable change.

This change offends the common law principle of the privilege against self-incrimination. I want to remind the Minister that in the Court of Appeal last year, 2002, there was a judgment in the case of Regina v Davies. The court examined the relationship between a defendant and an expert instructed on his behalf, holding that evidence obtained by the expert in such circumstances should be treated in the same way as communications between the defendant and his legal representative. In that particular case the defendant was convicted of murder and his defence was, among others, diminished responsibility. The trial judge ordered the defence, on application by the Crown, to disclose the opinion of a consultant psychiatrist instructed by the defence to examine and report on the defendant, but upon whom the defence had not been relying. The doctor gave evidence at the trial for the Crown. The Crown chose to use this particular expert and to rely on him because he had a view contrary to the one that was ultimately being relied on by the accused.

The conviction was quashed and the Court of Appeal found that the judge was wrong to order disclosure of the psychiatrist's opinion, being an item subject to legal privilege. Of particular relevance to this response was the following passage in the judgment of the court, which I recommend to the Minister: The appellant was…entitled to be protected from inadvertent self-incrimination. If a defendant agrees to be interviewed by a doctor instructed by the prosecution, he has the opportunity of being advised and knowing that what he says to the doctor may be used in evidence at the trial. If he is interviewed by a doctor at the instigation of his own lawyers for the purposes of his own defence, he is entitled to assume that what he says has the same status as his communications with his own lawyers. I do many cases involving psychiatry in which the expertise of psychiatrists is very important in the conduct of the case. Sometimes, for example, I may decide not to call a psychiatrist who I have instructed because I would be running a number of defences. For example, a battered woman who had killed her husband may be saying, "I was defending myself, he was battering me at the time and I picked up a knife and I assaulted him and it led to his death". So self-defence may be my predominant area of defence, but I might also want to explore the possibility, as an alternative, of diminished responsibility. It may be that I have a report from the psychiatrist that says that this woman is on the margins. She might be diminished, because she is a battered woman who is suffering from depression and falls into the category of battered woman syndrome, but it is very marginal and can easily be challenged. I may make the calculated decision not to distract the jury from the central issue of self-defence and therefore not to rely on the psychiatric evidence. Should it then be handed over to the Crown in those circumstances? I may want to rely on psychiatry in running provocation, which I can nowadays do. Should I be expected to disclose that information to the Crown?

We are moving into quite dangerous territory here because of the way in which it may lead to miscarriages of justice. The enforced disclosure by the defence of unused expert reports would violate common law, statute and current case law. In my submission to this House, we see nothing in the proposals to justify such a course. In fact, it would be very detrimental to justice.

It is important that the Government look at the unforeseen consequences of some of these recommendations. I think that the quality of expertise will be contaminated because tame experts will come forth. I greatly support the recommendation of Lord Justice Thorpe that the way to deal with bad experts is to have a system of accreditation.

9.30 p.m.

Lord Mayhew of Twysden

I could not hope to improve on the contribution of my noble friend Lord Carlisle of Bucklow. However, I want to assist the noble and learned Lord the Attorney-General, which will confirm everybody's belief that there is an unholy mafia between those who have held that office. I want to help him take the opportunity to explain the principle behind the clause by suggesting this scenario.

Let us suppose that there is a notorious prosecution or, more accurately, a notorious offence, which is the subject of a prosecution. At some stage—and this is not bizarre—one or more people with expert opinions and qualifications volunteer their assistance and send to the defence copies of their opinions and what they would be prepared to say. They have not been asked for it, but they volunteer it. The clause does not cover that—there is no obligation to disclose that, and quite right too, because that would surely be in conflict with the preservation of the burden of proof regarding which the noble and learned Lord so fervently said amen to my noble friend Lord Renton. But why not? If it is proposed to go ahead with Clause 34, what is different from the scenario that I suggest? It would be quite wrong, because that would be to compel the defence to give access to their pool for the purpose of allowing the prosecution to fish in it in order to enhance the prosecution case.

What is different in principle with a case in which the defence has instructed and consulted the expert? It just adds to the inherent validity or persuasiveness of that expert's opinion that he has been consulted on behalf of the defence. So if the noble and learned Lord is to avoid the charge that this provision is to enable the prosecution to fish in a pool to which the defence has been compelled to give them access, I would be very much obliged if he could explain the difference in principle between those two cases.

Lord Thomas of Gresford

The great objection to this clause seems to be on the basis of legal professional privilege, the primacy of which has very recently been underlined by the Privy Council in the case of B and Others which was decided on 19th May last. It may very well not have played any part in the noble and learned Lord's consideration, and certainly not in the consideration of those who have drafted this clause.

It was said very firmly by the Judicial Committee of the Privy Council, with the noble and learned Lord, Lord Millett, delivering the judgment, that it was decided as long ago as the 16th century that legal professional privilege was a supreme right for people. From a public policy point of view, although there may be compelling reasons for legal professional privilege to be breached in some way or other, nevertheless the decision was made, as long ago as that, that legal professional privilege should always prevail.

There is a distinction between Clauses 33 and 34. Clause 33 deals with witnesses of fact. Clause 34 deals with expert witnesses who give opinions on instructions. It is inevitable that those instructions will have to be based to a degree, sometimes very considerably so, upon privileged information. Often it will contain an account of what has happened. In the kind of case to which the noble Baroness, Lady Kennedy, referred, where one is obtaining a psychiatric report, and so on, an account of the incident may be given which is subject to legal professional privilege and details may be given to an expert in other fields as to how an incident happened, all of which should not be disclosed—as was said in the case of B and Others and, earlier, by the Judicial Committee of this House in the case of Derby Magistrates—in a way which would in any way interfere with the confidential relationship between the lawyer and his client.

If one approaches the issue from that point of view, it seems to me that any disclosure of names and addresses of witness who will not be used can have no other purpose than to encourage the prosecution to do the kind of fishing expedition to which the noble and learned Lord, Lord Mayhew, referred a moment ago.

Experts frequently are not used. They sit in court. They have provided reports which are riot disclosed. But they are there to advise the defence in dealing, for example, with a pathologist, a psychiatrist, and so on. Sometimes only one expert is heard for the prosecution; and the defence is advised, confidentially, without the expert himself giving evidence for the defence at a later stage.

Cases vary. In a case in the news last week—I was involved in it at earlier stages—there were four psychiatrists on one side and three on another. I can think of another case where there were three pathologists on one side and two on the other. That happens from time to time. More frequently, the expert for the defence is not called.

This clause is an intrusion upon that delicate balance to which the noble Baroness, Lady Kennedy, referred, which has preserved the reputation of the criminal justice system of this country over the years.

Baroness Mallalieu

Perhaps I may repeat to the noble and learned Lord the questions which others have asked and which cause me anxiety about the clause. First, why is it necessary? Secondly, what is the use to which the noble and learned Lord anticipates it will he put if it forms part of the Bill?

There are a number of reasons why in a criminal trial experts may be instructed by the defence. First and foremost, the Crown has served its experts and you want someone to check whether or not it is all right. Secondly, you have some instructions from your client—for example, he says he acted in self defence—and you want to know from an expert whether the injuries the deceased suffered were consistent with that. In other words, you want to know whether he has some support for his defence. On other occasions, you have a theory perhaps of your own. It may not form any part of his case but you may have doubts about his mental state and his capacity. In those circumstances, you would instruct an expert to discover whether there was a possible medical defence.

As the noble Lord. Lord Thomas, said, often an expert is instructed simply for the purposes of assisting defence counsel with cross-examination during the course of the trial. In order to obtain a report, privileged information will have to be given.

The noble Lord, Lord Thomas of Gresford, has indicated the difficulties which—it seems to me and others—arise with provisions of this sort. I am not sure that I understand from the wording of the provision as it stands to what extent, for example, not just unsolicited expert opinion has to be notified, but informal opinion, which is often the way in which solicitors and barristers make initial approaches. They telephone an expert who has been known to them from other cases, and ask over the telephone for comments on the facts. Are all those names and addresses to be provided? If they are, what happens when they reach the prosecuting authority? Is someone going to interview each of those witnesses? If so, will privilege thereby be breached?

Lord Goldsmith

I shall start by saying something about the concern that led to this clause, and then to talk about what this clause does not do. I have indicated, and the noble Lord, Lord Carlisle of Bucklow, was good enough to repeat, that where the prosecution have consulted more than one expert, but only intend to call one, then there is at least a strong likelihood that they will be required to disclose that fact as part of the unused material, and are likely to have to disclose the unused report itself.

The police believe that there are some defendants who might consult several experts until they find one who provides a report that suits their case, and which is used at trial—so giving an impression of the merits of the defence case, which is at variance with the facts, because of the seemingly authentic, impartial and authoritative aura of an expert witness. There was a desire that, given that experts are intended to be independent, impartial and not advocating for one side or the other, there should be no reason why such unused reports should not be disclosed. But that is not the effect of the clause. It does not require that any unused expert report should be disclosed, precisely because of legal professional privilege, the importance and existence of which the Government and I were well aware before this clause was finalised.

Equally, legal professional privilege means that it would not be appropriate if an expert was known to have been consulted and was then seen by someone from the prosecution. I remind noble Lords that there is no property in a witness. It would not be appropriate to probe that expert over the opinion that he had given before, still less to say to him, "please, can you provide a copy of the report that you have given". It would be inappropriate to ask for information that would indicate material which had been provided by the accused, for example. If it were a psychiatric report—my noble friend Lady Kennedy gave an example in which the psychiatrist based his opinion upon an account given by the defendant of what had taken place—that would be privileged information and ought not to be disclosed.

There are circumstances in which an expert does not have privileged information and where it would not be inappropriate for one party to consult an expert who had been consulted by another. That happened to me in a case in the early 1980s—not a criminal case, a civil case. But it went to the Court of Appeal, which said that it was quite appropriate for the other side to have consulted an expert that we had consulted, there being few experts in that field. Of course, he was not at that point giving evidence. He then did give expert evidence, not on the basis of what he had said to us, but following his discoveries as a result of the instructions that he had received.

The clause was intended to deter shopping around when it is improper—I am not at all suggesting that it always is—and to do something to redress the balance between prosecution and defence disclosure requirements in the area. It would be possible under the clause, provided that the expert was not questioned about the work done for the defendant or asked to give any opinion that would disclose in any way legally privileged material that he had had, for such a person to be consulted and employed by the prosecution. However, I accept that the clause does not attract the sanctions provided for in Clause 38, as Members of the Committee may have noticed. Again, legal professional privilege lies behind that restraint on behalf of the Government.

The provision remains modest and does not involve disclosure of the report, although my noble friend Lady Kennedy suggested that it did. I fully recognise the constraints of legal professional privilege. I am grateful to those Members of the Committee who reminded me of several cases that refer to it. I am glad to say that I was well aware of those principles previously. Although the clause, because it is modest, may have limited effect, it will still do something to redress a balance that exists.

9.45 p.m.

Lord Brittan of Spennithorne

The Minister has talked at length about the limitations on the use of the clause—there must not be interference with professional privilege, there must not be disclosure of communication from the defendant to the particular witness, and everything else that is not allowed. If all those constraints are accepted, it is very difficult to see any significant benefit in such a clause. What are the circumstances in which it is really desirable to ask Parliament to change the law which would properly enable the clause to be used in a way that has real value?

I am not persuaded, and I do not think that the Minister has begun to give any kind of colour as to the circumstances in which that would be really beneficial. We must bear in mind in particular that, even if one wished to be as scrupulous as possible in avoiding impairing professional privilege, what an expert says after he has been approached by the defence is bound to be coloured by that. It is extremely unlikely that, in a criminal as opposed to a civil case, he would be able to give evidence to the prosecution that would be proper.

Lord Goldsmith

I do not accept that the question of legal professional privilege depends, when one is talking about a defence expert, on whether the case is criminal or civil. Exactly the same principle applies.

Lord Thomas of Gresford

I merely want to point out to the Minister that, in practice, shopping around does not take place these days because legal aid is not granted for it. The fact is that 99.9 per cent of cases are legally aided. Every time one wants a professional and expert opinion these days, one has to apply to the fund for it to be granted. That is the way to control shopping around, not to deal with it in the way proposed in the clause.

Lord Goldsmith

I hear what the noble Lord says. My point in response to the noble Lord, Lord Brittan, is that I make a virtue of the fact that the proposal is modest, because it does not contravene the principles referred to as important by Members of the Committee who have spoken in this short debate. It will have some value for that, and some benefit in deterring shopping around and not allowing a false impression to be provided in certain cases. The Government will seek to ensure that the clause stands part.

Lord Thomas of Gresford

If the purpose of the clause is to avoid a false impression being created, it follows that the prosecution will reveal to the jury or to the adjudicating magistrates that other people have been approached for their names and addresses. If that information is not given, the false impression to which the noble and learned Lord referred remains.

Lord Goldsmith

I repeat. Read Clause 38 and see in what circumstances adverse inferences can be drawn. It does not include that.

Lord Mayhew of Twysden

Perhaps I may intervene before the noble and learned Lord sits down. He has been assailed by many noble Lords, because, no doubt inadvertently, he omitted to deal with a little scenario that I suggested. If the principle or rationale of Clause 34—as much in what it does not do as what it does do—is to protect legal privilege, how is it that the volunteer of an opinion is not included in the same provisions? In his case, no suggestion of legal privilege can arise, and yet the Bill does not propose to catch such a volunteer in that way. I asked rather tentatively and diffidently what was the principle that led to that distinction.

Lord Goldsmith

I apologise for not having addressed the example that the noble and learned Lord put to me in what I understood to be a friendly way.

The principle is that the provision in Clause 34 relates only to those cases where the accused has instructed a person with a view to his providing any expert opinion. The principle therefore is those he has instructed, but then does not use. If the defendant is fortunate enough to be assailed by offers of gratuitous expert advice from all sides, that is an entirely different issue. If the defendant does not take those offers any further, but then instructs one or more of those people actually to provide a report for possible use as evidence at the trial, there is no reason why this provision should apply. It is not just legal professional privilege which is the principle behind the provision. Legal professional privilege is a safeguard that should be guaranteed.

Perhaps I may address Amendment No. 112, which the noble Baroness moved. The provision is not otiose, as she suggests. Clause 33 introduces a general obligation for the defence to disclose the witnesses it intends to use at the trial—an obligation which has applied in the case of defence alibi and expert witnesses for many years.

Clause 34(2) removes the obligation of the defence to disclose an expert under Clause 34 who has already been disclosed under Clause 33. In short, it makes it clear that Clause 34 applies only to unused expert witnesses.

The amendment would duplicate the witness notice requirements. The accused would be required to include details of experts that he intended to call to give evidence both in the witness notification provision and in the expert provision. There seems to be no need for that.

Lord Thomas of Gresford

Will the Minister deal with the point raised by the noble Baroness, Lady Mallalieu, about the inquiry? Frequently, if not invariably, the solicitor will telephone a particular expert to get a feeling as to how he will deal with the issue at hand. Is that "instructing" in the terms of the Bill, or does it mean a formal letter of instruction for which payment will be given?

Lord Goldsmith

Whether someone is "instructed" within the terms of the clause does not depend on whether it is done orally or by letter. English law does not depend on formalities in that way. It is a question of fact. Has the accused instructed a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused? I can envisage circumstances in which an inquiry on the telephone—which may include questions such as "Does this fall within your field?" or "Have you got experience of this sort of incident?"—would fall short of instructing someone with a view to his providing an expert opinion for possible use as evidence at trial. It will always be, and is, a question of fact in each case.

Lord Mayhew of Twysden

I am sorry to prolong the debate and I shall do so for only 30 seconds. The Minister concedes that the prosecution has to disclose evidence which is adverse to its case. Let us suppose that the prosecution is favoured with a volunteered opinion which is adverse to its case and favourable to the defence. Surely it would then be incumbent on the prosecution to disclose it. Yet if the roles are reversed, the Government do not intend to apply the same rule. Is there any reason for that, save that to do so would impinge on the burden of proof?

Lord Goldsmith

We are adopting an entirely different approach between prosecution and defence. If the prosecution has examples of expert reports that undermine its case or advance the case of the defence, it will be obliged to disclose them. That is not what is being proposed in relation to the defence. The obligation on the prosecution in relation to unused material is more extensive. I do not complain about that—that is the way that we have drafted the Bill and it will remain more extensive.

Baroness Anelay of St Johns

I thank the noble and learned Lord for his answer to Amendment No. 112 and I accept his explanation. He took us further forward than was done in another place.

Several Members of the Committee have spoken as though Clause 34 stand part is grouped with these amendments. The Minister perhaps thought that it still was, but it has been separated. It is natural for Members of the Committee to take that within the general debate on my group of amendments.

The Minister said that the clause is intended to deter improper shopping around and redress the imbalance between prosecution and defence. That has taken us to the root of the objection which many of us on all sides of the Committee have with this clause.

I was disappointed that the noble and learned Lord returned to the phraseology used in another place, trotting out the old argument of shopping around. I thought that the noble Lord, Lord Thomas of Gresford, was right in putting forward the point that most people are on legal aid. The Legal Services Commission will not allow one to shop around for experts. It is the guardian on that.

Even so, why should not the defence be allowed to instruct more than one expert and on receipt of that report then decide whether to rely on it without the threat that the prosecution might leave the court to draw an adverse inference on the defence's decision not to use the expert's opinion? Why should a defendant's case be prejudiced by arguing in court on peripheral matters about why an expert has not been called? That is liable to distract the jury from the real issues in the case.

The noble and learned Lord said that he would look at Clause 38 and that adverse inferences affect Clause 34. In that case, he should accept my Amendment No. 113 with open arms. It makes it clear that the information which goes to the prosecution with regard to the name of an expert whose evidence will not be relied upon cannot be used in court. My amendment makes it clear that that evidence cannot be used and therefore no adverse inference can be drawn. My honour will be satisfied.

I have offered that compromise to the Minister, but he has not seized it. I therefore give notice that although I shall now beg leave to withdraw Amendment No. 112, I shall ask to test the opinion of the Committee on Amendment No. 113.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 113:

Page 22, line 41, at end insert— (4)In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused, and no copy of his report having been served by the accused on the prosecutor, no reference shall be made at trial by the prosecutor or evidence adduced by him, to the effect that the accused had approached such a person for his expert opinion." The noble Baroness said: I beg to move.

9.59 p.m.

On Question, Whether the said amendment (No. 113) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 47.

Division No. 2
Anelay of St Johns, B. Harris of Richmond, B.
Blatch, B. Hodgson of Astley Abbotts, L.
Bridgeman, V. Hylton, L.
Brittan of Spennithorne, L. Kennedy of The Shaws, B.
Carlisle of Bucklow, L. Luke, L.
Colville of Culross, V. Maginnis of Drumglass, L.
Cope of Berkeley, L. Mayhew of Twysden, L.
Craigavon, V. Naseby, L.
Crathorne, L. Renton, L.
Dholakia, L. [Teller] Roper, L.
Seccombe, B. [Teller]
Dundee, E. Shutt of Greetland, L.
Ferrers, E. Thomas of Gresford, L.
Geddes, L. Thomas of Walliswood, B.
Hanningfield, L. Ullswater, V.
Ahmed, L. Faulkner of Worcester, L.
Andrews, B. Fyfe of Fairfield, L.
Archer of Sand well, L. Gale, B.
Barnett, L. Gilbert, L.
Bassam of Brighton. L. Golding, B.
Bernstein of Craigweil, L. Goldsmith, L.
Borrie, L. Gould of Potternewton, B.
Burlison, L. Grocott, L. [Teller]
Campbell-Savours, L. Hollis of Heigham. B.
Chandos, V. Hoyle, L.
Clark of Windermere, L. Hughes of Woodside, L.
Crawley, B. Hunt of Kings Heath, L.
David, B. Jordan, L.
Davies of Oldham, L. [Teller] Judd, L.
Dean of Thornton-le-Fylde, B. Layard, L.
Dubs, L. McIntosh of Haringey, L.
Evans of Parkside, L. McIntosh of Hudnall, B.
Evans of Temple Guiting, L. MacKenzie of Culkein, L.
Farrington of Ribbleton, B. Pitkeathley, B.
Radice, L. Thornton, B.
Simon, V. Warwick of Undercliffe, B
Stone of Blackheath, L. Watson of Invergowrie, L.
Whitty, L.
Taylor of Blackburn, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.8 p.m.

Clause 34 agreed to.

Clause 35 [Further provisions about defence disclosure]:

[Amendments Nos. 114 to 116 not moved.]

Baroness Anelay of St Johns moved Amendment No. 117: Page 23, line 22, at end insert "having heard representations from all parties

The noble Baroness said: This amendment would alter proposed new Section 6E of the Criminal Procedure and Investigations Act 1996. In its current form, the Bill would allow the court, either of its own motion or on the application of any party, to direct that the jury may be given a copy of the defence statement. Amendment No. 117 would add one further qualification to subsection (5)(a) in that there would have to he representations from all parties.

We received advice on this matter from the Bar Council and the Law Society, which believe that it is essential in order that the court may give the defendant an opportunity to have a say about what effect such disclosure would have on his or her case. Surely one should allow all the parties involved in the justice system to make their case.

The defence statement itself will be submitted very early on and, of course, may be extremely detailed. It will have been submitted with the implied authority of the defendant, who may not easily be contacted or he may have mental health difficulties or require an interpreter. Any of those may mean that there is some information of which the defence is unaware or about which it is perhaps not too content and which the defendant feels would harm his defence if it went before the jury.

The fact that this document may be given to the jury in its entirety will increase the pressure on the defence representatives. Of course, while we are fully supportive of early preparation and disclosure—we made that clear in our support of earlier clauses in this part—we are concerned that these proposals take no account of the constraints of time and resources and the timetables of other agencies involved, such as the police, the CPS and prison officers, or, indeed, the time constraints of the Legal Services Commission.

I should be grateful if the Minister could indicate whether funding will be available for the additional staff and earlier instruction of counsel that will be required as a result of this new regime. I beg to move.

Lord Goldsmith

I agree with the substance of what the noble Baroness has said in the first part of her observations, but I do not think that it is necessary. I am not sure that I understood the second part of her remarks, which may be my fault.

The amendment would include in Clause 35 a provision that before a judge gives a copy of a defence statement to the jury, he should hear representations from all parties. Clause 35 says that the judge can give the defence statement to the jury. I find it hard to believe that a judge would not want to hear representations from the parties before taking that step.

The courts make many orders during a trial, and judges will invariably look to the parties for representations as to whether or not the order should be made. I anticipate that a judge will always seek representations before making an order. However, I would object to putting it on the face of the Bill that, before making the order, representations have to be considered. That would then mean that every time we give a court a power to make an order, it must do so only after making representations. What will then happen when we do not include such provisions?

I hope that those remarks will reassure the noble Baroness on the fundamental point behind her amendment, and I invite her to withdraw it.

The noble Baroness then asked about timing and payment for defence counsel. The particular provision on giving the defence statement to the jury does not seem to me to involve additional work on the part of the defence team, which, at the moment the judge considers giving it to the jury, will have to make a representation. But that will simply be part of the defence's preparation. I cannot give a further answer. I probably misunderstood the point.

Viscount Colville of Culross

I shall just say a word to support the noble and learned Lord the Attorney-General. I am sure that he is right that before a decision is made about giving a statement to the jury, counsel on both sides would be asked for their views. No judge would do something like that without seeking some sort of agreement—or disagreement, in which case he would have to adjudicate. I should have thought it basic to the running of the court that that should happen.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response. This amendment was tabled as the direct result of a briefing from the Law Society. It is the Law Society's own drafting. I shall check its response to the Minister's remarks. In the last debate, my noble and learned friend Lord Mayhew of Twysden referred to occasions upon which one may not seek expert advice, but it can be volunteered. Such expert advice was volunteered by my husband on Saturday evening, and it concurred entirely with what the noble and learned Lord said, so I am not entirely surprised. However, I will check with the Law Society whether we should take this matter any further on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clauses 36 and 37 agreed to.

Clause 38 [Faults in defence disclosure]:

10.15 p.m.

[Amendment No. 118 not moved.]

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 119:

Page 25, line 6, leave out ", (3) and (4)" and insert "and (3)"

The noble Lord said: This amendment is to be taken with a later group. For the moment I will not move it.

[Amendment No. 119 not moved.]

Lord Thomas of Gresford moved Amendment No. 120:

Page 25, leave out lines 40 to 45.

The noble Lord said: The purpose of the amendments in this group is simply to exclude from Clause 38, which deals with faults in defence disclosure, references to the failure of the accused to give a witness notice in time in relation to witnesses, or calling a witness who has not been adequately identified. In defending somebody, it is difficult to decide in advance whether a witness will he called. Almost by principle, defence witnesses are not called unless it is absolutely necessary so to do.

Furthermore, issues arise in the course of a trial that the defence has not expected. A witness may say something that calls for a riposte. It is not a sufficient safeguard for the court simply to have regard to whether there is any justification for the failure. That is not a sufficient safeguard in the sort of circumstances that I envisage.

We are opposed in principle to punishment for failure to give notice of defence witnesses. It has never happened before and should not be allowed by this Bill. I beg to move.

Baroness Anelay of St Johns

I support the noble Lord, Lord Thomas of Gresford, on the three amendments to which I have put my name, but I am not proceeding with Amendment No. 122, which I tabled.

Lord Goldsmith

I speak to Amendments Nos. 120 and 121, not to Amendment No. 122, which is not being proceeded with, to Amendments Nos. 123 and 125, and to Amendment No. 126, which is in the name of my noble friend Lady Scotland.

We had thought that Amendments Nos. 120, 121, 123 and 125 were consequential upon the deletion, had it happened, of Clause 33, which requires the defence to give notice of intention to call defence witnesses. Of course, if the clause had gone, it would make sense no longer to include the provisions to which the amendments refer. I understand from what the noble Lord, Lord Thomas of Gresford, said in moving the amendment that he proposes that, although Clause 33 stands—that is to say, there is still an obligation on the defence to give notice of defence witnesses—no sanction whatever should attach to a failure to comply. I respectfully suggest that that would be inappropriate.

Important safeguards are provided, including that in proposed new subsection (6), which provides, where there is a failure arising under proposed new subsection (2)(f)(ii), that leave of the court would be required before comment could be made. Now I read the detail, that is not as relevant as I thought when I began that proposition.

Surely, it makes sense that if there is a good reason why a new witness has been called—there is no failure to call a witness but a new witness is called for a good reason—no adverse inference will be drawn and there can be no harm in the provision. On the other hand, if the defendant had had all opportunity and had no justification for suddenly producing a witness who could plainly have been identified before, common sense suggests that people would say, "Now you say that this man was standing next to you when the incident took place, saw everything, and that you travelled home with him. Why on earth did you not say that before? If you have a good reason for that, let's hear it. If not, an inference is likely to be drawn".

Viscount Colville of Culross

The same point arises again. I do not know whether the noble Lord, Lord Thomas of Gresford, would agree with me, but the drawing of inferences is not a matter that goes undiscussed before the judge directs the jury. There is often occasion to discuss how that will be put. Indeed, that is to some extent consolidated in the guidance given to Crown Court judges. I should have thought that common sense would indicate that if there was a good reason why the witness had not been caught before, that would be aired in the absence of the jury between the parties in the court and, very likely, no adverse inference would be put before the jury. I may be wrong about that, but that is certainly how I would have dealt with that.

Lord Hylton

Earlier, the noble Lord, Lord Brittan, asked how often ambush defences occur and how often they succeed. It might be appropriate to our consideration of the amendment if the noble and learned Lord could answer that question.

Lord Goldsmith

I am happy to do that with such information as is available to me this evening. It goes back a little bit, but a Crown Court study was conducted for the purposes of the Royal Commission on Criminal Justice under the chairmanship of Lord Runciman. According to research undertaken then, when asked, prosecution barristers considered that there had been an ambush defence in 7 per cent of cases in which there was a substantive reply. The Crown Prosecution Service, looking at a different number of cases, put the figure at around 10 per cent. The police considered that there had been an ambush defence in a larger number of cases, but I should make it clear that the sample of cases was different. Prosecution barristers said that some 41 cases out of 601 involved ambush defences; for the CPS it was 70 out of 724; for the police it was 152 out of 581. According to the police, ambush defences occurred in 21 per cent of contested cases ending in a verdict of not guilty, with 34 per cent of cases ending in a verdict of guilty.

The figures given in the course of this research study indicate that, in the views of those asked—the police, prosecution barristers and the CPS—there were ambush defences in a significant number of cases.

I should have spoken to Amendment No. 126. If noble Lords permit, I shall do so now before moving it formally in due course. The amendment introduces a new clause, adding a significant safeguard to the requirement for the defence to provide advance notice of witnesses. It provides for any police interviews with witnesses to be disclosed to the prosecution under the new procedures to be governed by a code of practice. In an earlier part of this debate I indicated the areas covered by that code.

The new clause addresses concerns raised by the House of Commons Home Affairs Select Committee about the risk of undue pressure being put on defence witnesses. The committee recommended that any such interviews should be covered by a code of practice, and that is what is proposed. I hope that the clause will be welcomed by all sides of the Committee.

Lord Hylton

Earlier this evening the noble and learned Lord the Attorney-General said that a record kept by the police of interviews with defence witnesses whose names had previously been disclosed would be given both to the witness and to the accused. I do not see any reference to that in the proposed code of practice. How is this to be dealt with?

Lord Goldsmith

The amendment sets out the enabling powers for a code of practice; it does not include in its terms the code of practice itself. I was referring to an indicative code of practice, of which notice had been given, so I believed, to a number of noble Lords. However, I know that the noble Baroness, Lady Anelay, said earlier that she had not received a copy. I do not know whether that indicates that there has been a more general failure of disclosure. The letter indicates that it had been copied to all noble Lords who attended the Second Reading debate. I cannot immediately recall whether the noble Lord, Lord Hylton, did so, but I shall certainly ensure that a copy of the letter is sent to him very soon. He will then see the indicative provisions that we have in mind.

Lord Thomas of Gresford

I wish to comment first on ambush defences. I am not surprised that the figures differ as to whether it is the prosecutor or the police coming to the conclusions just set out by the noble and learned Lord. It depends on what is meant by an ambush defence. It happens frequently in a case that facts come to light or circumstances change which were not expected by the prosecution. For example, the prosecution may have one version of what happened during an interview, but when the defendant comes to give his evidence he says that for one reason or another those events were not true and then gives the actual defence. Would that be defined as an ambush defence?

My second point concerns the code of practice. I would be grateful if the noble and learned Lord could tell us whether it will apply equally to alibi notices, or the equivalent of alibi notices in the defence statement. A problem that arises in practice with the police interviewing alibi witnesses is that they have in their possession a statement which they do not disclose, saying that there are public interest reasons for not doing so. The defence is then more or less obliged to call its alibi witnesses blind, not knowing precisely what is set out in the statement that the police have obtained. If the code means that all statements taken from defence witnesses, including alibi witnesses—and, of course, interviews—will now be in the hands of the defence, that is a great advance which I certainly welcome. Can the noble and learned Lord enlighten me on that?

Lord Goldsmith

The provisions of the proposed new clause in Amendment No. 126 provide for a code of practice, in relation to the arranging and conducting of interviews of persons…particulars of whom are given in a defence statement in accordance with section 6A(2), or…who are included as proposed witnesses in a notice given under section 6C". So it will be necessary to consider the detail of that. Section 6A(2) appears to include alibi witnesses and therefore it would appear that I am able to answer the noble Lord's question in the affirmative.

Lord Thomas of Gresford

I am very pleased to hear that.

My third and final point in relation to the amendments that I have moved and spoken to is that the clause envisages the disclosure of the defence statement to the jury. Up until now it has been impossible to get a defence statement before a jury even if one wants to. In a particular case in Liverpool the defence wanted to do that but the judge refused leave for that to happen. I take it that defence statements will be disclosed to the jury if the jury is to be invited to draw some inference from them. I certainly agree with the noble and learned Lord that there will be discussions between counsel and the judge before the judge invites the jury to draw inferences of that kind. That is what happens in the usual course of events.

I shall consider this matter having regard to the reply given by the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 121 to 123 not moved.]

Lord Goldsmith moved Amendment No. 124:

Page 27. line 5, leave out "5" and insert "6A(3) The noble and learned Lord said: The amendment makes a technical correction to the draft. I beg to move.

On Question, amendment agreed to.

[Amendment No. 125 not moved.]

Clause 38, as amended, agreed to.

Lord Goldsmith

moved Amendment No. 126: After Clause 38, insert the following new clause—


In Part 1 of the 1996 Act after section 21 there is inserted—


  1. (1) The Secretary of State shall prepare a code of practice which gives guidance to police officers in relation to the arranging and conducting of interviews of persons—
    1. (a) particulars of whom are given in a defence statement in accordance with section 6A(2), or
    2. (b) who are included as proposed witnesses in a notice given under section 6C.
  2. (2) The code must include (in particular) guidance in relation to—
    1. (a) information that should be provided to the interviewee and the accused in relation to such an interview;
    2. (b) the notification of the accused's solicitor of such an interview;
    3. (c) the attendance of the interviewee's solicitor at such an interview;
    4. (d) the attendance of the accused's solicitor at such an interview;
    5. (e) the attendance of any other appropriate person at such an interview taking into account the interviewee's age or any disability of the interviewee.
  3. (3) Any police officer who arranges or conducts such an interview shall have regard to the code.
  4. (4) In preparing the code, the Secretary of State shall consult—
    1. (a) to the extent the code applies to England and Wales—
      1. (i) any person who he considers to represent the interests of chief officers of police;
      2. (ii) the General Council of the Bar;
      3. (iii) the Law Society of England and Wales;
      4. (iv) the Institute of Legal Executives;
    2. (b) to the extent the code applies to Northern Ireland—
      1. (i) the Chief Constable of the Police Service of Northern Ireland;
      2. (ii) the General Council of the Bar of Northern Ireland;
      3. (iii) the Law Society of Northern Ireland;
    3. (c) such other persons as he thinks fit.
  5. (5) The code shall not come into operation until the Secretary of State by order so provides.
  6. (6) The Secretary of State may from time to time revise the code and subsections (4) and (5) shall apply to a revised code as they apply to the code as first prepared.
  7. (7) An order bringing the code into operation may not be made unless a draft of the order has been laid before each House of Parliament and approved by a resolution of each House.
  8. 745
  9. (8) An order bringing a revised code into operation shall be laid before each House of Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.
  10. (9) When an order or a draft of an order is laid in accordance with subsection (7) or (8), the code to which it relates shall also be laid.
  11. (10) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.
  12. (11) A failure by a police officer to have regard to any provision of a code for the time being in operation by virtue of an order under this section shall not in itself render him liable to any criminal or civil proceedings.
  13. (12) In all criminal and civil proceedings a code in operation at any time by virtue of an order under this section shall be admissible in evidence.
  14. (13) If it appears to a court or tribunal conducting criminal or civil proceedings that—
    1. (a) any provision of a code in operation at any time by virtue of an order under this section, or
    2. (b) any failure mentioned in subsection (11), is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.'

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Schedule 3 [Allocation of cases triable either way, and sending cases to the Crown Court etc]:

Lord Thomas of Gresford

moved Amendment No. 127: Page 184, line 43, at end insert— ( ) Where the court makes a decision under subsection (1) that the offence is more suitable for summary trial, having been informed of the accused's previous convictions under subsection (2)(a), the court as constituted shall not continue to try the accused. The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128, 129 and 130, which give rise to a very important point of principle.

I am very concerned that where a court has made a decision having been informed of the accused's previous convictions, then that court should not continue to try him. That is the purpose of the subsection I seek to insert in paragraph 5 of the third schedule. For the existing Section 19 there is to be substituted a decision as to allocation. The court will give the prosecution an opportunity to inform the court of the accused's previous convictions, if any, and will also give both the prosecution and the accused an opportunity to make representation as to what sort of trial is more suitable.

Having come to that conclusion, we consider that the court should disqualify itself from sitting to determine the matter as ordinary magistrates. I beg to move.

Lord Goldsmith

I speak to Amendments Nos. 127, 128, 129 and 130. Amendment No. 127 would disqualify magistrates to whom antecedents had been revealed at allocation from hearing any subsequent summary trial.

The Government recognise that there will be circumstances when lay magistrates or district judges consider that information which has been revealed to them in the course of an allocation hearing is sufficiently prejudicial that they feel it would not be proper for them to hear the trial of that defendant if summary trial is agreed.

In those circumstances it is appropriate for the magistrates to stand down; and that is what they would do. But the question here is whether that is what magistrates should be required to do by putting it on the face of the Bill. It is quite well known that magistrates will hear cases involving defendants where one or more of them were involved in convicting that same defendant some time before. Indeed. in some parts of the country with the more prolific local offenders it would be quite hard sometimes for the local Bench not to recognise a defendant as someone they dealt with only recently. It would be odd if a magistrate were disqualified automatically by reason of being informed that a defendant had a certain previous conviction, but would have a discretion to hear the case if he himself convicted him a month before. We are prepared to trust magistrates and district judges to know when it is appropriate for them to sit.

For that reason we believe that the automatic disqualification for which Section 42 of the Magistrates' Courts Act 1980 provides can he dispensed with. We would therefore not accept Amendment No. 130, which is consequential on Amendment No. 127.

Amendment No. 128 deals with a different point. That would require a prosecution application to have a case re-allocated for Crown Court trial to be made within seven days of the decision to allocate it for summary trial. The justification for allowing such an application is that an allocation decision may have been made on the basis of incomplete information. If it is discovered, for example, that a defendant who was believed to have no previous convictions in fact has many and all for offences similar to that for which he stands charged, and this discovery is made before the start of his trial, why should he not be sent to the Crown Court to be tried? Why impose a time limit of seven days, which would be quite arbitrary?

The idea of being able to move from summary trial to committal proceedings is not an innovation: there is existing provision for that.

Finally, Amendment No. 129 would require the defendant to be notified of such an application. I am sure that the normal practice would be for the Crown to inform the defendant wherever it was practicable to do so. My only doubt is whether a statutory requirement to do so might lead to unnecessary delay in cases where notification was for some reason not practicable and the need for Crown Court trial indisputable. But I am prepared to consider whether a statutory requirement could be incorporated.

Lord Thomas of Gresford

In the light of those assurances I am happy to withdraw the amendment. I am very grateful to the noble and learned Lord for saying that the court will consider whether it should continue to sit in particular circumstances. When that is drawn to the attention of the magistrates I am sure that they will come to a proper decision. I hear what the noble and learned Lord says about Amendments Nos. 128 and 129. I should be grateful if he would consider the placing of the opportunity to make representations on the face of the Bill. I wait with interest to see what he will do. For the moment, I beg leave to withdraw Amendment No. 127.

Amendment, by leave, withdrawn.

[Amendments Nos. 127A to 130 not moved.]

Lord Goldsmith

moved Amendment No. 131: Page 199, line 19, leave out from second "offence" to end of line 20 and insert "triable either way; The noble and learned Lord said: I move Amendment No. 131 and speak to Amendment No. 132. Amendment No. 131 brings the definition of an either way offence into line with that of the Interpretation Act 1978. It is therefore a technical amendment that I hope will be acceptable.

Amendment No. 132, which appears to be very substantial in length, makes numerous consequential amendments to Schedule 3. It results from the new allocation and sending provisions, which are provided in that part of the Bill that we have just dealt with. It is necessary, in the light of the new provisions for allocation and for sending of cases, that such consequential amendments be made. Noble Lords will understand why, at this hour in the evening, I do not propose to go through every one of such consequential provisions. I beg to move.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 132:

Page 210, line 5, at end insert—