Criminal Trials

HL Deb 17 January 2005 vol 668 cc626-38

8.35 p.m.

Lord Thomas of Gresford

rose to ask Her Majesty's Government, further to the Written Statement by the Attorney-General on 20 December 2004 (WS 104-05 ), whether they propose to change the impartial role of prosecuting counsel, in respect of both the introduction of the previous convictions of a defendant in a criminal trial and the interviewing of prosecution witnesses.

The noble Lord said: My Lords, I express my thanks to the noble and learned Lord the Attorney-General for coming to the Dispatch Box at very short notice to answer this Question, which was tabled only on Friday. I declare an interest as a criminal practitioner with extensive experience of both prosecuting and defending, and this debate gives me an opportunity to raise a matter which causes me disquiet.

In subtle ways, the complainant in a criminal case is beginning to be treated as the client of the prosecutor. The essential impartiality of prosecuting counsel is, in my view, being undermined. He is being asked to take sides and to become involved in the emotions and personalities of complainants and their families. Achieving justice, objectively, between the state and the individual should be at the heart of the criminal justice system—not, as the Government so often state, victims and witnesses.

Of course, justice cannot be done if a witness is so intimidated that he does not come forward or if his account is incomplete. But that is a matter for the police to investigate and not counsel. Similarly, the voluntary witness service does a great deal to ease the fears of complainants and witnesses where the court proceedings are in themselves intimidating. The prosecutor should not be involved at all in some kind of calming and comforting role.

The concept of the prosecutor as an impartial "Minister of Justice" dates back at least to the beginning of the 19th century. A classic definition of the role was given by Mr Justice Rand in the Canadian case of Bucher in 1954, and endorsed by the Supreme Court of Canada two years ago. Mr Justice Rand said that the prosecutor performs a public duty which excludes any notion of winning or losing. It is not the purpose of a prosecutor to obtain a conviction. His purpose is, he said, to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it also must be done fairly". I think that the courts of this country would adopt that statement. It means that the prosecutor must maintain objectivity. His decisions should involve an exercise of his personal discretion which takes into account the public interest generally. That may or may not be in accordance with the desires and wishes of the complainant. I believe that present trends are beginning to interfere with that independent discretion.

I want to give three illustrations. The first concerns the need to consult complainants before accepting pleas to lesser charges or offering no evidence. The Attorney-General's guidelines of December 2000 on accepting lesser pleas or offering no evidence contain the following: The prosecution should whenever practicable, speak with the victim or the victim's family, so that the position can be explained and their views and interests can be taken into account as part of the decision making process. The victim or victim's family should then be kept informed and decisions explained once they are made at court". Of course, I am entirely of the view that the victim and his family should be informed of what is going on but not that their views should be part of the decision-making process. In my experience, the practical application of this policy is that victims are given a say in a decision that the prosecutor wishes to take and they can, and do, delay the acceptance of lesser pleas or the offering of no evidence.

The second illustration is that the prosecutor is now required to introduce previous convictions into a trial under the Criminal Justice Act 2003. We have extensively covered that area, and I do not propose to say much more about it.

The rush to introduce the legislation in December has already provoked the anger of the Court of Appeal. What is the impact of those provisions on the decision of the prosecutor to prosecute? Is he directed to take previous convictions into account in determining whether the threshold of "more likely than not" has been reached. Perhaps there is not enough evidence to reach that threshold. Do the convictions take him over it? Is he to include the previous convictions in the trial papers regardless of his own views on whether it is just or not?

The third illustration concerns the proposal for interviewing complainants and witnesses. The proposal is that prosecuting counsel should be able to interview witnesses not just pre-charge to determine whether a person should be charged in the first place, and not just post-charge to see whether a prosecution should be continued, but, in accordance with the report on which the Attorney-General relies, at any stage of the proceedings". Reliance is placed on the Canadian experience—in the case of Regan, in particular. A prominent political person was charged with some 22 sexual offences. Crown counsel reinterviewed 16 of the original 22 complainants, not to protect the defendant by testing their evidence, but to have reluctant complainants change their minds and come forward to lay charges. The trial judge's views are worth recording. He said that it, is impossible to retain the requisite level of objectivity by conducting lengthy (and no doubt emotional) pre-charge interviews with the complainants. Human nature just will not allow it. By doing so you hear first only one side of the story. How can you then objectively review the process which includes a consideration of the rights of the applicant?". The Supreme Court divided five to four. Justice Binnie pointed out that there were at least three related, but somewhat distinct, components to the "Minister of Justice" concept. He said: The first is objectivity, that is to say, the duty to deal dispassionately with the facts as they are, uncoloured by subjective emotions or prejudices. The second is independence from other interests that may have a bearing on the prosecution, including the police and the defence. The third, related to the first, is lack of animus—either negative or positive—towards the suspect or accused. The Crown Attorney is expected to act in an even-handed way". No account seems to have been taken in the report of the American experience of what they call, "horse-shedding". Witness coaching was described by one American judge in the case of Earp as the "dark and dirty secret" of the US adversary system. He explained that a lawyer, must exercise the utmost care and caution to extract, and not to inject, information, and by all means to resist the temptation to influence or bias the testimony of a witness". Generally, the American experience shows how undesirable it is. Prosecutors have the ability, consciously or unconsciously, to strengthen the case by questions and suggestions that cause the witness to fill gaps in memory, eliminate ambiguities or contradictions, sharpen language, create emphasis, and alter demeanour. Do we in this country really want to get involved in suspicions of horse shedding?

The noble and learned Attorney-General has promised us a code of conduct. I want to make some comments about that. A victim is not the client of the prosecutor. There can be no legal professional privilege attaching to any interview between the two. The proposals exclude the defence from attending the interview but the defence is entitled to know exactly what, and the manner in which, anything has been said.

Secondly, if there is a suspicion that a witness has been encouraged to come forward by the prosecutor or has been coached or rehearsed in what to say, or has had his memory suddenly refreshed, it is bound to be a matter of extensive cross-examination and submission. It is invidious that the prosecutor conducting the case should have been the person who did the interviewing, and that it is his notes which will be under scrutiny. That is the proposal.

Thirdly, there should be no cross-examination in the course of the interview whereby the account of another witness is put to the victim or witness so that he or she may adopt what is put and thereby contaminate his own account. In particular, no witnesses should be interviewed after the commencement of a trial to have put to them matters or allegations which have emerged in cross-examination. The report is headed Pre-trial witness interviews by prosecutors report, but the summary of conclusions refers to interviews at "any stage of the proceedings". That goes well beyond the Canadian experience.

Fourthly, there should be no interview by the prosecutor of defence witnesses—no distinction is drawn in the report—particularly alibi witnesses. It is common place for the police to interview witnesses disclosed in a defence statement as potential defence witnesses, but how could a prosecutor fail to engage in cross-examining a defence witness if he were permitted to have an interview with him?

The only fair way to monitor the prosecutor's interviews of witnesses and victims is to have them videoed so that the tape can be made available to the defence. That is the only way to prevent the Section 78 arguments and all the sort of submissions that were made prior to the introduction of PACE—what was said to a witness, and, in what way has his evidence been influenced?

In any event, the principle of "equality of arms" must mean that defence counsel has the like right to interview witnesses in the same circumstances as the prosecutor—in private and without a proper record being made. Tell that to the ACPO and see what its reaction would be.

When will the Attorney-General's proposed code be published? Will it be in draft form so that we can comment upon it and suggest amendments? Will there be consultation? I look forward to his reply.

8.48 p.m.

Lord Mayhew of Twysden

My Lords, the noble Lord, Lord Thomas, has done a service in giving us the opportunity to examine the noble and learned Lord the Attorney-General's proposals in this regard. I agree with a great deal of what the noble Lord said. He is absolutely right to invite us to focus upon the fundamental importance of sustaining the impartiality of the prosecutor.

The prosecuting arm of the state is intensely invasive and it is of profound importance for the well-being of our country and its citizens that its exercise should be closely controlled. There should be no trenching upon the role of the prosecutor as, as was once said, a minister of justice. The noble Lord, Lord Thomas, has drawn our attention to various dicta that put the matter in slightly more modern language, but the essence of those remarks is the same: the prosecutor must not be partisan.

The noble and learned Lord the Attorney-General does well to recognise the bewilderment, confusion and sense of insecurity felt by witnesses who are called upon to play a part in a criminal proceeding as those factors can adversely affect the quality of the evidence that the witnesses ultimately give. The sense of bewilderment and confusion is harmful in itself as it contributes to the public's impression that a visit to a court is a visit to mumbo-jumbo land. That is not good for confidence in the criminal justice system or for confidence in any other aspect of the justice system.

A reform of the character that we are discussing this evening must consider not only, or even principally, the reduction of the unease experienced by witnesses. I suggest that the first target always has to be the enhancement of the fairness of criminal proceedings and their efficacy. Of course, fairness comprises a multitude of factors, one of which is that only a witness whose account of matters is perceived as reasonably reliable should be called in support of a prosecution case.

What worries all practitioners about prosecution advocates interviewing witnesses, as has been vividly brought out by the noble Lord, Lord Thomas, is the risk of coaching. That is a very real risk. It is a very insidious danger. It is insidiously easy for it to happen. I ask myself why I believe that to be true. I believe it is because all practitioners, all advocates, are trained from the beginning to present a case in its most attractive form. A very narrow line separates the desire to present a case on which one is instructed in the best way possible from the desire to help that case to become a little better from the point of view of the evidence available to it.

The prosecuting advocate's first duty is to the court and to serve the interests of justice. The noble Lord, Lord Thomas, is absolutely right to say that the victim is not the client of the prosecutor, nor, nowadays, is the chief constable or the police. Even a slight gilding of the lily of the evidence achieved in interviewing a witness is quite incompatible with that.

I am not in the least abashed to read—as I do in the report that the Attorney-General has published—that apparently only the common law system here in England and in Wales has the safeguard, which we have long had, of prohibiting the prosecuting counsel from interviewing a witness. The danger of coaching is a danger to be fiercely countered. I note from the report of the noble and learned Lord that he recognises the nature of that danger. Of course he does as an advocate of long experience himself.

Not without some misgivings I am persuaded that, for carefully restricted purposes, the present rule can be relaxed, but with one absolutely essential qualification—and here I again agree with the noble Lord, Lord Thomas. Whenever counsel interviews a witness, the full encounter should be video recorded, and that video should be made available to the defence. Otherwise there will inevitably be challenges to the sufficiency of the contemporary note, as is proposed in the report, and prosecuting counsel will have to go into the witness box to say what happened, what he said and what did not occur, and that would be incomprehensibly confusing to a jury and fundamentally incompatible with counsel's role.

I am pleased to see from page 16 of the report that video recording in these circumstances is being piloted by a number of police forces. I hope that we shall be given an opportunity to consider the outcome of those pilots. I am considerably less pleased to see, on page 29, the view that the noble and learned Lord the Attorney-General takes of this becoming a universal requirement. He says: In practical terms, audio or visual recordings of witness interviews have the potential to increase costs in a number of ways". He goes on to set out increased costs, to the CPS … the legal aid fund … to the public purse at trial". Based on the content of the tape, there would be "satellite litigation", as he calls it, as well as "increasing trial length". Then, the horror of horrors: Undoubtedly, the question of provision of transcripts also arises". No doubt it would be costly to some degree. However, all these matters would be relevant. As they are relevant, they would play their part in securing a fair result.

Unfortunately, the noble and learned Lord appears suddenly to have become bored of the argument. He goes on, in language which I find uncharacteristically extreme, to say that although the arguments, in favour of audio or visual recordings have force… on balance the practical disadvantages of audio or visual recording outweigh the perceived advantages and therefore the practical consequences of recording all interviews are such as to militate against adopting such a course. There is also no basis upon which to conclude that the risks of prosecutors coaching witnesses or otherwise contaminating evidence are real as opposed to theoretical. On that basis he concludes, there is no justification for adopting audio or visual recording. I think that he has uncharacteristically gone over the top there. There are very real grounds for fearing contamination in the way that we have already been examining.

I am very pleased to see that the noble and learned Lord the Attorney-General proposes that there shall be considerable examination of this in front of working parties and so forth. Although the rule may be relaxed, it is only on the basis of very close supervision and qualification. I hope that we are going to hear a great deal more of this before the change is finally made.

8.58 p.m.

Lord Kingsland

My Lords, it is my great good fortune to follow the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Mayhew of Twysden. The noble Lord, Lord Thomas of Gresford, is of course an extremely experienced and very distinguished criminal practitioner. The noble and learned Lord, Lord Mayhew of Twysden, was an outstanding Attorney-General for four years. I am lucky to have heard their speeches, and am in a position to say that I wholly agree with everything that both the noble Lord and the noble and learned Lord said. My good fortune is enhanced by the consequence that I have very little left to say.

I notice that throughout the report of the noble and learned Lord the Attorney-General, entitled Pre-trial Witness Interviews by Prosecutors, there are a number of occasions on which the noble and learned Lord expresses a desire to place victims and witnesses at the centre of the criminal trial. But I see nothing in his report about the rights of the defendant.

It used to be said—indeed, it used to be said by successive Home Secretaries of both political parties that have enjoyed power during most of the 20th century— that it is by the standard of the rights of the defendant that a civilised society is judged. If your Lordships were to apply that formula to the conduct of the Government since 1997, when they came to power, I would not be surprised if your Lordships concluded that there had been a serious erosion of that principle.

First, throughout that period there have been a number of attempts by the Government to moderate the role of jury trial, most recently in the course of the Criminal Justice Act 2003. I suspect that we have not heard the last of that; and that the Government will seek to return to it if they are fortunate enough to win the next election.

Secondly, there was the decision in the Access to Justice Act 1999 to give the employees of the Crown Prosecution Service rights of audience in the Crown Court.

Thirdly, and most shamefully, there are the changes in the Criminal Justice Act 2003 to allow propensity evidence to be used in criminal trials, thus undermining the presumption of innocence which hitherto had always been the hallmark of criminal trials in this country. I must confess that I was astonished that a Labour Government should have sought to introduce such a measure, especially when I recall the observations made by the Labour Party when in opposition to changes that the then Conservative government proposed. I look upon that change with total despair. I feel ashamed that we have come to this.

Finally, there was the initiative of the noble and learned Lord the Attorney-General himself in introducing the right for the prosecution to appeal against certain decisions made by trial judges in the course of a criminal trial. No such right was accorded to the defendant. Once again, the Government sought to change the balance of power between the prosecution and the defence.

So it is hardly surprising, when I read the Government's latest effort, that my suspicions are once again aroused that here we are presented with a further attempt by the Government to change the balance of power between the prosecution and defence, in favour of the prosecution. That has been particularly aggravated by what I can most conveniently refer to as number six of the summary conclusions. It states: However, prosecutors should be permitted to hold witness interviews at any stage of the proceedings—particularly if further evidence or material, casting doubt on the reliability of a witness's evidence comes to light at a later stage in the proceedings or if further witnesses come to light after a decision to prosecute has been reached". I find that objective astonishing. It would enable a prosecutor, if he felt that the witness was not performing very well in the witness box at an appropriate stage in the trial, to re-interview the witness or to interview the witness for the first time on the matters to which he or she testified, permitting that witness to go back into the box at a later stage.

Can that really be what the Government intend? Are they seriously thinking of making a change to such a fundamental rule about witnesses being spoken to by the prosecution while they are giving their evidence? If that is so, I find it quite astonishing.

The noble and learned Lord the Attorney-General recently—very fairly and extremely impressively— reported to your Lordships' House on the number of unsafe convictions in trials which have involved unexplained deaths of very young persons. In all those trials, a key ingredient in achieving a conviction has been the expert evidence of the prosecution.

Much of that evidence, of course, is now discredited, but we all know that the prosecution is entitled to talk to expert witnesses in a way that it is not entitled to talk to witnesses in fact. If the experience of interviewing expert witnesses by the prosecution is anything to go by, why is the noble and learned Lord the Attorney-General convinced that he will do any better with interviews of witnesses of fact? All the evidence in relation to expert witnesses, at least in the area of unexplained infant deaths, suggests that the process has been potentially counter-productive.

Your Lordships can be in no doubt about the sincerity of the noble and learned Lord the Attorney-General. It has been manifest in everything that he has done since he has taken up that office. I ask him to think very carefully before taking a further step in the direction of the erosion of the rights of the defendant.

9.7 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, I congratulate the noble Lord, Lord Thomas of Gresford, on having secured this debate and on having secured it with such rapidity, but I am very happy to come to the Dispatch Box. I thank him and other noble Lords for the contribution that they have made to this debate.

I welcome the debate because it provides a rare opportunity to say a few words about the role of prosecutors and the way in which public prosecutors, of which the Crown Prosecution Service is the largest and principal example, are progressing. I welcome the opportunity to respond to questions on my recent Written Statement on the interviewing of prosecution witnesses.

Perhaps I may start with a word or two about what is happening with prosecutors generally because I want to emphasise the enhanced role and the development of the prosecutor in the criminal justice system. The vision which I have, and which is shared by those who are superintended by me, including particularly the Director of Public Prosecutions, is for prosecutors to provide a world-class prosecuting service that meets the needs of the public and the needs of victims and communities. I see prosecutors becoming more outward-facing and more outcome-focused; having an enhanced role at each stage of the criminal justice process; and working in co-operation with others in the criminal justice process while—I emphasise this point as I always do— maintaining that independence of decision-making which is the hallmark of British prosecutors.

In doing that, there are three aspects on which prosecutors are focusing: first, strengthening the prosecution process; secondly, putting victims and witnesses more at the heart of the prosecution and criminal justice process. I shall say a word about that and respond briefly to the impromptu gallop of the noble Lord, Lord Kingsland, through the changes in criminal justice in the past few years. I was surprised to hear him complain about the decision to give prosecutors a right of appeal when, in the event, he and his party consented to those provisions going forward in the previous Act. Thirdly, prosecutors are engaging with the communities that the prosecution serves.

These are being achieved through hard work and the dedication of prosecutors under my supervision. There are elements such as the statutory charging scheme which went through with all-party support in the Criminal Justice Act 2003 where prosecutors now have the responsibility to decide the charge in all but minor or routine cases. That enables them to play an essential role at the beginning of a case and to advise police and other investigators on what evidence is required before a charge can be brought.

I am grateful to the noble and learned Lord, Lord Mayhew, who rightly recognised that witnesses in our system become bewildered through not understanding the process. I agree with the noble Lord, Lord Thomas, who made the point that unless witnesses are prepared to report crime and come forward, we cannot do justice to anybody. We have embarked on a process—the No Witness, No Justice project—under which there are and will be witness care schemes throughout the country in which police and the prosecuting service will play their part to support witnesses, to protect and to inform them.

Of course, the witnesses must then come to court and give their evidence, and this will be probed in the appropriate way. That is right. We are also looking at ways in which particular sorts of crime can be tackled in order to reduce them, such as introducing specialist prosecutors for anti-social behaviour. Last week I talked about specialist prosecutors for serious and organised crime, which is a major problem in this country.

What does that mean for the role of the prosecutor? The noble Lord uses the word "impartial" in his question. In my view, that word means that prosecutors are independent, objective and are not trying to get a conviction at all costs. The Code for Crown Prosecutors sets out, Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source. It is the duty of crown prosecutors to make sure that the right person is prosecuted for the right offence. In doing so, Crown Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction". If that is what the noble Lord intends by use of the word "impartial" in his question, I can confirm this will continue to be the approach adopted by prosecutors.

I would like to say more about this matter as the word is perhaps open to misunderstanding. Let nobody think that the modern prosecutor is indifferent to the need to bring offenders to justice. The noble Lord, Lord Thomas, quoted from a statement made by Justice Rand in the Canadian case of Bucher. I would emphasise one sentence in what he said. The learned judge said that counsel have a duty to see that all available legal proof of the facts is presented. It should be done firmly and pressed to its legitimate strength, but it must also be done fairly. That combination of firm but fair is important.

I want to dispel any suggestion that impartiality means that prosecutors do not care about bringing offenders to justice. They are prosecutors and it is their job to prosecute. So where there is sufficient evidence, they are under a duty to prosecute cases fairly but firmly. They are on the side of justice, but they are also there to champion the interests of victims and the public, and to be a voice for the public in court. Where there is sufficient evidence, prosecutors will pursue it firmly. That may well include advising the police to obtain further evidence to strengthen the prosecution case.

I turn now to the particular points made by the noble Lord, Lord Thomas, and other noble Lords. The noble Lord, Lord Thomas, has expressed disquiet about three particular aspects. The first is that of victims being consulted in circumstances where the downgrading or discontinuation of a charge is being considered. I have to say that I disagree with the noble Lord. I get a lot of correspondence from victims and their families. What is extremely important for them is understanding why a charge has been dropped or downgraded. The most common case is that of the parents of someone who has been killed. The charge starts as one of murder and they want to understand why it has been downgraded to manslaughter.

I recall the days when I started at the criminal Bar. I think we regarded witnesses as simply something to be included in the technical part of the case. They stood outside the court and waited until we called them. We would ask some questions, at the end of which some of the more compassionate judges might suggest that they were welcome to stay. The rest of us would think, "Why on earth would they want to do that? They have given their evidence". I do not think that we recognised sufficiently that the justice system is about people. The victims of crime are those who have been affected by it, but not every person who claims to be a victim is one, which is why we have a trial process to make sure that it is fair and that cases are tested in the proper way. However, undoubtedly witnesses have rights and I do not believe that we fully recognised those rights in the past, and it is right that we should do more.

Lord Thomas of Gresford

My Lords, perhaps the noble and learned Lord the Attorney-General will recall that I said that I have no objection to all the necessary information being given to the victim or his family. It is the element of incorporation in the decision-making process, to which his guidelines refer, that causes me disquiet.

Lord Goldsmith

My Lords, as I have said, I disagree with the noble Lord about that because I believe that crime affects people. It is appropriate to take account of their views and not to bring cases where the evidence is not there.

I turn now to the other two issues. I shall deal first with pre-trial witness interviews, on which most of the time of the debate has been spent. As noble Lords know from my Statement, I announced that I had reached the conclusion that in future prosecutors should be able to interview witnesses, something which at the moment they are not entitled to do. Noble Lords have referred to the report that I have published setting out my conclusions and my reasons for them. It was published after an extensive consultation and an examination of other jurisdictions—not, as the noble Lord, Lord Thomas, suggested, based on the Canadian experience. The Regan case was referred to for a different reason. However, it certainly drew on the experience in Northern Ireland, New South Wales, British Columbia, Scotland and, within this jurisdiction itself, the position of the Army Prosecuting Authority.

I think that many members of the public would be surprised to learn that in England and Wales prosecutors—and here I do not mean just counsel, but prosecutors in the Crown Prosecution Service—are not entitled to interview witnesses before trial even when they are key witnesses whose credibility may be critical to whether a prosecution should go ahead. The decision whether to go ahead is rightly for the prosecutor, yet at present he is not allowed himself to assess the reliability or credibility of the witness's evidence. Prosecutors in other countries would be surprised because it is striking that it is in England and Wales alone—and then only in the non-military parts—that we have this rule.

I noted the words of the noble and learned Lord, Lord Mayhew, on this, but I would respectfully remind him that when he held the office which I presently hold, he was also the Attorney-General for Northern Ireland, as I am now. In Northern Ireland, counsel as well as officers of the DPP interview witnesses. They have what is known as "consultation", which takes place regularly. I do not recall anyone, including the noble and learned Lord, saying that the system is wrong and should not be allowed to continue.

Given that the prosecutor is in charge of the prosecution, it is for him to decide which evidential issues are significant and which require further explanation. It therefore makes sense that he should be allowed to reach a fully informed decision on whether there is sufficient evidence by being able to assess for himself, for example, whether the witness is credible.

The public rightly expect prosecutors to prosecute criminal offences robustly, promptly and fairly and to bring to trial only those against whom there is an adequate and properly prepared case. Where prosecution is justified in the public interest, the prosecutors need to have confidence in the reliability of that evidence. That means, therefore, if prosecutors are to meet that expectation, they need to be able to interview witnesses before trial. That is the conclusion of the report.

I have set out the conclusions and I have said that it is important that there should be a code of practice and training. As noble Lords know, I have asked the Director of Public Prosecutions to establish a working group to look at these issues. I am sure that it will also be able to look at some of the issues raised by noble Lords today. Equally, I have raised the issue with the Bar Council, which will similarly look at issues such as whether there is a distinction to be drawn between the position of independent counsel and that of those within the Crown Prosecution Service. We will look at all those issues and I shall be happy to take up the request to keep noble Lords informed on the code of practice and so on.

I should like to say a few words about two particular issues. First, I recognise—and the report, I hope, makes this clear—that one of the concerns expressed in the consultation is the risk of coaching. I deal with that at some length in the report. However, experience in other jurisdictions, including Northern Ireland, is that that is not a real problem. We also allow police to interview witnesses but do not video interviews as a matter of course. Why is it that we cannot trust prosecutors—qualified lawyers who are subject to professional rules of conduct and a code of practice— to do that when we trust police officers to do so? I do not find that a satisfactory distinction to make.

The other issue is the question of the video recording of interviews which take place. I recognise the points made by the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Thomas, about that. Again, they are set out in the report. But I respectfully suggest that one should not underestimate the practical problems involved in videoing each of those events.

If a video has to be made available, someone will require a transcript, which is expensive; someone will then want to read the transcript, which adds to the cost. There will be what I term—it is a term also used by judges—"satellite litigation", debates and disputes in the court about what did and did not go on. Given that I do not recognise the real risk of coaching that underlies this issue, I do not see why we should put the public to additional expense, delay and inconvenience in relation to this aspect.

However, I am well aware that this is an issue which causes questions to be raised. I shall take into account what noble Lords have said and I am sure that the issue will be raised and considered by the working party, the Bar Council and others.

I was asked about the provisions in relation to bad character. I shall not go into the history of this issue either. The CPS has issued legal guidance. It will seek to apply the provisions in the way that Parliament intended. The guidance will be shortly available on the CPS website. Paragraph 7.9 states: The intention behind this is that evidence of previous misconduct that has a relevance to an issue in the case should be admitted to give courts and juries the fullest possible relevant information for them to determine guilt or innocence". I do not accept the concerns of the noble Lord, Lord Thomas. I do not agree with the noble Lord, Lord Kingsland. In complaining about the failure to have regard to the interests of defendants, I am sorry that he did not note that the introduction on the very first page emphasises the importance of prosecuting criminal cases fairly as well as robustly and promptly in reaching the right decision. The noble Lord knows full well that that is my view.

I should also say to the noble Lord that it was perhaps unfortunate to turn the Cannings issue against this proposal. I am grateful for what he said about the valuable exercise taking place, but there is absolutely no reason whatever to suggest—it is both unfair and speculative—that the fact that the experts in that case were open to talk to prosecuting counsel had anything at all to do with the fact that, in the event, their evidence in certain cases has been found to be wanting.

House adjourned at twenty-five minutes past nine o'clock.