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Sir Ivan Lawrence (Burton): Before my right hon. and learned Friend leaves the subject of sensitive material, will he confirm that questions of sensitive material arise in trial after trial in the criminal courts? Does not that make a total nonsense of the part of Lord Justice Scott's report that seems to indicate that public interest immunity does not apply to criminal cases?

Mr. Howard: I shall be referring later to the relevance of Lord Justice Scott's report to the Bill. Perhaps myhon. and learned Friend the Member for Burton(Sir I. Lawrence) will forgive me if I do not respond to his invitation to pursue that matter at this stage.

The royal commission on criminal justice found the current arrangements unsatisfactory and concluded that changes were needed. Its proposals included the creation of a statutory scheme for prosecution and defence disclosure in stages, underpinned by subordinate legislation or a code of practice. We agree with that general approach, but our detailed proposals differ from the royal commission's in two important respects.

First, the commission's test for prosecution disclosure was very wide ranging. If anything, it would have imposed even more burdens on the prosecution and the police than the current requirements. Our scheme focuses on the likely effect of unused material on the prosecution case and on the defence case when that is known. Secondly, the proposals would have required the accused to give only a general indication of the nature of his case and would not in practice have contributed to narrowing the issues in dispute before the trial. Our scheme requires the defence to provide more detailed information so as to clarify in advance what is really at issue between the two parties. In building on the work of the royal commission, we have set ourselves the task of putting in place a system that will remove the iniquities of the current arrangements without denying the defendant access to material to which he would be entitled in the interests of justice.

We set out our proposals in a consultation paper in May last year. Many organisations and individuals representing a range of interests responded to it. There was widespread support for the Government's proposals, particularly on defence disclosure, and those proposals have formed the basis for the disclosure provisions of the Bill.

The police warmly welcomed our proposals. As the president of the Association of Chief Police Officers said,

    We particularly endorse the principle of defence disclosure as an important and positive step which we believe will be welcomed by many working within the criminal justice system."

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The president of the Police Superintendents Association added:

To complete the picture, the chairman of the Police Federation described the reaction of his association to the Bill in graphic terms, saying:

I come now to the detail of the disclosure provisions in the Bill. The disclosure scheme in part I would require the prosecutor to disclose to the accused unused material that the prosecutor thought might undermine the prosecution case. At the same time, he would give the accused a schedule listing all unused material that was not sensitive. In response, the accused would disclose the general nature of his case, the matters on which he took issue with the prosecution and the reasons for doing so. Defence disclosure would be mandatory in the Crown court, but voluntary in magistrates courts.

In response to defence disclosure, the prosecutor would disclose any additional unused material that might assist the defence that had been disclosed. If a dispute arose about whether there was any other material that might assist that defence, it would be resolved by the court.The Bill allows a court to draw an inference if the accused does not comply with the defence disclosure requirements.

Mr. Alex Carlile (Montgomery): Will the Home Secretary clarify a point that has been of concern to the Law Society? The duty to disclose information that may undermine the prosecution case is taken to include material that would support the defence case, and there may be a grey area in between. Will the Home Secretary confirm that if, for example, the police came upon evidence that might tend to support a defendant's alibi, that would have to be disclosed, even though it may not directly undermine any piece of evidence forming part of the prosecution case?

Mr. Howard: With great respect to the hon. and learned Gentleman, the remarks that I have just made could not have been clearer in dealing with that specific point. That situation would not arise in the context of first stage disclosure, for the simple reason that it is not at that stage a part of the prosecution's duty to anticipate any defence that might be disclosed. But if, at the second stage of prosecution disclosure, the defence team had identified its defence as an alibi defence--to take the hon. and learned Gentleman's example--it would certainly be part of the prosecution's duty to disclose any material available to it that supported that alibi defence. That is absolutely clear from what I said--it is a clear part of the scheme that underlies the Bill.

As to sensitive material, the Bill retains the current procedure, whereby the court rules on whether it is in the public interest to disclose such material. However,the prosecutor would not need to bring such material before the court unless he thought that it undermined the prosecution case or unless it might reasonably assist the defence disclosed by the accused.

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Part II requires the Secretary of State to prepare a code of practice for the actions of the police in relation to unused material for prosecution disclosure. It sets out the matters that may be included in the code of practice, including what material is to be preserved by the police. As now, the police would make all the material available to the prosecutor, with whom decisions on disclosure would rest. Although the code of practice is for the police, others conducting criminal investigations would have regard to it. Under the Bill, the code of practice must be subject to statutory consultation and approval by Parliament before it comes into operation.

We have prepared a draft of the code of practice and have placed it in the Library, so as to inform the debates on the Bill in the House. It may be capable of further refinement, but at the moment it represents the Government's best view of what the code ought to contain, taking account of comments by outside interests and the debates in another place.

I do not want to leave the subject of disclosure without saying something about the recommendations ofSir Richard Scott. Sir Richard makes a number of recommendations about prosecution procedures and public interest immunity. Some of those are relevant to the Bill's subject matter, and Sir Richard notes that they will have to be considered in the context of the legislation currently before the House--this Bill. We are studying the recommendations and have not yet reached a decision on them.

Without pre-empting the consideration of those recommendations, I must point out that the recommendations on prosecution procedures take as their starting point the existing law on disclosure. I think that it is widely recognised that the current arrangements are unsatisfactory and, as I explained, the Bill proposes significant changes to them. We shall therefore be considering Sir Richard's recommendations, not against the existing law, but against the provisions in the Bill.We hope to be in a position to announce our conclusions in time for changes to be made in the Bill, if changes should appear to be necessary.

As for the recommendations on public interest immunity, Sir Richard Scott comments that legislative intervention is, in his opinion, neither necessary nor,at present, desirable. In its current form, the Bill does not amend the law on public interest immunity. It preserves the existing common law rules about whether disclosure is in the public interest, and provides for rules of court to be made on the practice and procedure to be followed by the courts in relation to applications to the court and orders by the court.

During our debate yesterday, my right hon. Friend the Member for Witney (Mr. Hurd) and my hon. Friend the Member for Torbay (Mr. Allason) argued that the law on public interest immunity should be put into statute.The Government will consider that issue, and the clutch of detailed recommendations by Sir Richard Scott on public interest immunity, very carefully. As my right hon. Friend the Chancellor of the Duchy of Lancaster promised, we shall ensure that the House has an opportunity to consider those matters further.

Mr. Jack Straw (Blackburn): Plainly, the Government will take time to consider the detail of the

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recommendations made in Sir Richard Scott's report,but I wish to ask the Home Secretary specifically about the general point that Sir Richard made at paragraph K6.18, where he plainly anticipated the continuing use of public interest immunity certificates in criminal trials,but went on to say, in recommendation (ii):

    "PII claims on a class basis should not in future be made",

and distinguished between a class basis and a contents basis. Does the Secretary of State accept that recommendation?

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