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5.29 pm
Mr. Walter Sweeney (Vale of Glamorgan): I welcome the Bill's central provisions on disclosure. It is clearly desirable that the police should not have to photocopy huge piles of paper unnecessarily. It is important that prosecution cases should not have to be dropped because of the need to avoid disclosing sensitive information, such as the names of informants.
I have in mind a case involving a major banknote forgery where suspects were arrested in a hotel bedroom following a tip-off. There was a large pile of forged banknotes in the room, some of which bore the fingerprints of some of the suspects. The case had to be dropped because the judge ordered that the identity of the person who tipped off the police would have to be disclosed.
The three-stage disclosure procedure proposed in the Bill is welcome: the obligation on the prosecution to disclose any unused material that might undermine its case; the obligation on the defence to outline its case in sufficient detail to identify the issues in dispute; and the obligation on the prosecution to disclose any further information that might assist the defence. That logical sequence should help to improve court procedures.
I am pleased that a code of practice has been prepared to assist the police and the prosecution in producing all appropriate documents. I wish, however, to sound a note of concern, which I hope will be taken up when my right hon. Friend the Minister of State replies. I am concerned about how the exercise of discretion by the police and the prosecution will be scrutinised so that the system can be seen to be effective in protecting the legitimate interests of defendants.
An idea for a defence might occur to a defendant when he and his legal advisers have an opportunity to engage in what Mr. Broughton of the Police Federation described as a fishing expedition. I am talking of an idea or ideas that may not have occurred to the defendant because he was not aware of a loophole in the prosecution's case. The police and the prosecution, from their different standpoints when compared with the approach of the suspect, may not be as acutely aware of potential defences as would be the defendant or his advisers. If the Bill is enacted, it will help to stop guilty people being acquitted. It is even more important that it should help to stop innocent people being convicted.
I hope that my right hon. Friend the Minister of State will be able to provide reassurance that there will be adequate scrutiny of the police and the prosecution, to
ensure that, in cases of doubt, the police and the Crown Prosecution Service err in favour of too much disclosure rather than too little.
I welcome preparatory schemes for long or complex cases as they will ensure that cases are well prepared and presented when they reach court. In complex fraud cases, that will be especially useful in helping jurors to understand complex issues.
The opportunity to argue legal points at preliminary hearings will help to avoid confusion among jurors, who feel rather baffled when they are sent out of court while legal points are argued. If issues are argued before the trial begins, jurors will be able to hear the evidence in a more seamless fashion. They will no longer be baffled by unexplained requests to leave court.
The Bill will encourage defendants to enter pleas at an early stage, which will considerably improve the court process to the advantage of all concerned. If a defendant enters a guilty plea, that will avoid the need to prepare the volume of paperwork that would be necessary if the case were going to trial. At the same time the defendant will benefit from increased certainty and increased speed in the disposal of his case. He will be able to take advantage at an early stage of any discount for his plea. The courts will be able to reflect the fact that the defendant, through his action, has saved the court,the CPS and the police quite a lot of preparatory work.
I welcome the fact that the Bill provides powers for the courts to ban reporting of false or irrelevant allegations against witnesses during pleas of mitigation. It has always worried me that once a person has been convicted,or following a guilty plea, the last word is with the defence advocate, once the court has had the opportunity to consider all the available reports, for example. The bench and reporters finish a case with the words of the defence advocate ringing in their ears, and those words may be reported in the press to the detriment of witnesses. That damages the witnesses concerned and acts as a deterrent to other public-spirited citizens in coming forward to give evidence in future.
I congratulate my right hon. and learned Friend the Home Secretary on reaching the end of his 27 points.He has delivered quickly on all his commitments in reform of the criminal law, despite the considerable difficulties created by the Opposition.
Mr. Donald Anderson (Swansea, East):
I applaud the reasoned and reasoning contribution of the hon. Member for Vale of Glamorgan (Mr. Sweeney), which was much in the spirit of the contribution made by my hon. Friend the Member for Blackburn (Mr. Straw). As my hon. Friend said, we welcome the Bill and support its main provisions. We shall try to work constructively during its remaining stages.
At first glance, this is a lawyer's Bill; it is somewhat technical and long. It seeks to remedy deficiencies that have been revealed in practice. In relates, however, to
deep issues of principle, such as the respective roles of defence and prosecution in criminal trials. I have in mind the golden thread of Viscount Sankey--the presumption of innocence and the burden that should properly be put on the defence. Those are areas that need properly to be explored in Committee.
The Bill has been introduced at a time when there is deep public anxiety about the criminal justice system.We should heed that anxiety with respect. By their response to consultation documents, the Government have at least given some sign of being prepared to listen.
I make but two preliminary points, the first of which is, perhaps, marginally controversial: that the Home Secretary, by his conduct over the years in criminal justice matters, can hardly be surprised that many reasonable people involved in criminal justice respond with caution and wariness to any proposals that he makes. In the past, many of his proposals have been made in the rather heady atmosphere of Conservative party conferences, which is not most conducive to a reasoned debate about criminal justice. There is always the fear that if one expresses anxiety--as, to be fair, the hon. Member for Vale of Glamorgan did--about ensuring that innocent people are not found guilty and that proper facilities are available to the defence, the Home Secretary will gleefully leap out and accuse us of being the "villain's friend". Let us hope that we can proceed in a rather different spirit today.
On a similar theme, each hon. Member has received a valuable briefing for the debate from a number of outside organisations, including the Law Society, the Bar Council, Justice and Liberty. Some of us have practised--and some still do--criminal law. In my judgment, it is always helpful to have a question and answer response from those who are learned in the field, particularly with a non-controversial Bill of this nature, because so often the atmosphere in Standing Committees is adversarial--we glower at each other across the Benches, which is not the best forum for such a study.
I wonder why the Government have not considered referring the Bill to a Special Standing Committee, which would allow us to examine it in a somewhat more rational atmosphere. I shall not go over the history of Special Standing Committees, but the House will know that they came into being in the early 1980s. I think that only seven Bills have been subjected to that special procedure. Indeed, since 1983-84, only two Bills have been subjected to it, and both were on Scottish business. When the Opposition made that suggestion in respect of the Asylum and Immigration Bill, the Home Secretary stated that it could not properly be referred to such a Committee because it was controversial. He said:
On another occasion, he said:
Does not this Bill fall four square into that category?If that procedure, which has been lauded by the Government in the past, and which, as with the Criminal
Attempts Bill, has proved extremely useful to the Government, is to be used at all, is not this Bill a perfect opportunity according to the Government's definition?It cannot take up a great deal of time, because under the relevant Standing Order 28 days are allowed, and it would allow us to call experts.
The Home Secretary mentioned the consultation procedure in respect of PII certificates and the way in which Sir Richard Scott's recommendations would be examined. Would it not be appropriate, as PIIs arise under the Bill, for Sir Richard and other relevant practitioners--academic and otherwise--to be called before such a Committee? Are the Government saying that it is not appropriate for such a vehicle to be used? Surely the Bill is highly appropriate for such a procedure. The Government are not so fizzing with legislation that they have no time to deal with it because the juggernaut must press on. We all know that a substantial part of their legislative programme has already been put into effect. They have said that the consultation document on PIIs will be published in, perhaps, May. It is technically possible for the conclusions of that consultation to be incorporated in the Bill. I make that plea to the Government on the preliminary points.
On the substantive matter of disclosure, and more generally, I am attracted by many of the proposals in the Bill, particularly those designed to speed up the process of trial and to clarify and narrow the issues in dispute beforehand. I accept that the defence should be required to show the relevance of unused material that it seeks to inspect, and not to go on a fishing expedition in the hope that a defence will emerge.
Equally--this point was made by the hon. Member for Vale of Glamorgan--it is wrong that juries should be inconvenienced by having their consideration of trials interrupted, often for substantial periods and frequently while points of law are argued in their absence. It is surely right that, as far as is practicable, all such issues should be disposed of before a jury is sworn, as suggested in,I think, clause 34.
If greater use is to be made of pre-trial procedures,I make the plea that the judge who decides the preliminary issues should also be the judge at trial. All too frequently, particularly in London, a succession of judges deal with such preliminary points and it is highly desirable that the judge who determines such preliminary points should also be the trial judge.
On disclosure, my hon. Friend the Member for Blackburn quite rightly said that the problem of the burden of material must be considered. It is a question of drawing the line. It includes the equality of arms, which has been developed by the European Court of Human Rights in interpreting article 6(1) of the European convention. There is broad consensus that the balance between defence and prosecution obligations is not right, and the Bill goes a substantial way towards remedying that.
There will be a need to examine in detail each stage of the proposed new procedure, which in many ways appears to be cumbersome but which may be the best that we can devise. We should proceed with some humility, realising that the great miscarriages of justice that have tarnished our system over the past decade, and in which my hon. Friend the Member for Sunderland, South (Mr. Mullin) has played such a distinguished part, arose essentially because of non-disclosure.
There will be selective disclosure, and therefore part of the task of the Committee will be to ensure that there are sufficient safeguards. For example, the investigator should be under the clear control and supervision of the prosecutor. Any prosecutor--I spent most of my professional life prosecuting--will understand that, for the majority of the police, there is a crusading element: an element of diffamation professionelle, professional defamation. The prosecutor should be able to make a more objective assessment.
I am broadly happy with the provisions in respect of defence disclosure, which are intended to clarify the issues and to save time. Again, however, certain safeguards need to be written into the Bill. I am prepared to accept the argument for a statement of the prosecution's case, and for a duty of continuous disclosure as new facts come to light. I shall not go into all the details now, but I will say that I welcome the possibility of a retrial in the event of an acquittal following jury nobbling, although I fear that the provision will not have much effect in practice. It is worth reading clause 46 in detail: it draws attention to many of the hurdles on the route to a retrial. I suspect that few, if any, will take place, but I nevertheless think it proper for such powers to exist.It offends our sense of justice that criminals can scoff at the law.
"A Special Standing Committee is a procedure suitable for non-controversial technical Bills".--[Official Report, 20 November 1995; Vol. 267, c. 340.]
"It has always been clear that the procedure was designed for Bills that have a degree of cross-party support. The Bills for which it has been used have been relatively technical and non-controversial."--[Official Report, 11 December 1995;Vol. 268, c. 710.]
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