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7.30 pm
The Government are spoilt for choice. They can choose between four definitions of what should be disclosed. Before they reject them all out of hand, they should perhaps bear it in mind that the definition proposed in the Bill has been rejected not only by the Opposition but by the royal commission, the Law Society and the Criminal Bar Association, whose members will have to implement the disclosure regime.
Far from simplifying matters, the Bill introduces unnecessary complications. Many criminal cases are not particularly complex: under the present system, the prosecution simply provides the defence with a bundle of what is known as non-material evidence--that is, statements collected by the police and not relied on as part of their case. The Bill requires the prosecutor to examine all material before handing it over, and to make a judgment about every item. He will then have to provide the defence with a schedule describing the nature of each item. Finally, the prosecutor must make a judgment about what further material must be disclosed. Just where will Crown prosecution lawyers, who are already considerably overstretched, find time to engage in such a complex procedure? There is an obvious danger that mistakes will
be made; indeed, it is likely that in most cases such judgments will be left to the police, and that is fraught with danger.
I recognise--as the royal commission did--that occasional demands from unscrupulous lawyers for large quantities of material relevant to the defence case can cause unnecessary delay and expense. That is particularly the case in fraud trials. I acknowledge that it may well be possible to take steps to simplify and improve existing practice, but I do not believe that the problem is as great as some people allege. Indeed, I believe that it has been deliberately talked up to distract attention from the inconvenient fact that the failure of the police and Crown prosecutors to disclose material that they should have disclosed caused many of our recent problems.
In the Carl Bridgewater case--if I may take a topical example--many years elapsed before it was revealed to the defence that unidentified fingerprints had been found at the scene of the murder. A further five or six years elapsed before Ministers were persuaded to disclose that those fingerprints--which do not belong to any of the convicted men--were found on the victim's bike, which was picked up by one of the murderers and tossed into a nearby pigsty. Despite what has now emerged, and although the man who prosecuted in the case has urged the Government to refer it back to the Court of Appeal, the Home Secretary is refusing to do so. That suggests that a very casual attitude to disclosure prevails among Home Office Ministers. Indeed, one is bound to wonder whether any of the lessons of past disasters have been learnt.
That case is an illustration--only one of a number that I could offer--of the gulf that divides us on this issue. I say "divides us"; I remind the House that it divides the Government from not only the Opposition but the Criminal Bar Association, the Law Society and just about anyone with any expertise relating to criminal trials. It does not make sense to try to resolve problems with the existing arrangements by devising a system that is considerably more complicated than the existing system, and may store up even greater problems for the future.
Incidentally, anyone who thinks that this is a cheaper solution should reflect on the millions of pounds that are spent, and the vast quantities of extra paperwork that are incurred--to say nothing of the cost of imprisoning and compensating innocent people--when controversial cases revisit the Court of Appeal, often many years later. I have no doubt that, if it remains unamended, the Bill will result in more cases being referred back to the Appeal Court, as it becomes clear in future years that material that should have been made available to the defence at trial has been either negligently or deliberately--probably negligently in most cases--unreasonably withheld.
Mr. Michael:
I wish to speak briefly about amendments Nos. 71 and 72, to which my name is attached.
Clause 3 requires the prosecutor to
Amendment No. 71 would leave out the words "in the prosecutor's opinion". Amendment No. 72 would replace the word "undermine" with the words "cast serious doubt on". We feel that the test that matters need to be disclosed if they might undermine the prosecution's case is far too black and white. To undermine a case is to leave nothing of that case to proceed, but other matters might be involved which, although not absolute and conclusive, would require judge and jury to exercise their critical faculties in deciding whether the case was made or had failed in the light of the evidence. The piece of evidence concerned, however, might be serious, and it is possible that, according to all the tests that we discussed in Committee and in previous debates on the Bill, it should be made available to the accused. It is not a question of absolutely anything having to be disclosed, but I feel that requiring the disclosure of significant material that would cast serious doubt on the case is preferable to the absolute concept of material that would totally undermine the case.
Let me make it clear--as we have done on a number of occasions, including Second Reading--that the Opposition fully support the Bill. We believe that the reduction in the volume of disclosure, and in the amount of paperwork, is an important objective. We also believe, however, that in seeking that objective it is important to get the balance right. That, indeed, is what most of our debates on Second Reading and in Committee have been about.
I think that the Bill has improved as a result of our debates. The Government have tabled amendments, in Committee and on Report, which deal with some of the issues raised in earlier debates. That is positive, and it is right to give credit for that. The absolute nature of the test in clause 3(1)(a) fails to get the balance right, and I hope that--at the very least--the Government will be willing to change the word "undermine" to a requirement to reveal material that would "cast serious doubt" on the case for the prosecution.
My hon. Friend the Member for Sunderland, South(Mr. Mullin) takes a serious view of these matters, and I greatly respect his opinion because of his experience and the vast amount of time that he has spent dealing with serious miscarriages of justice. His judgment has been proved right on a number of occasions when hon. Members and others have backed away from accepting the logic of his case. I understand his personal reservations about the Bill and his concerns that limiting disclosure may lead to miscarriages of justice. Opposition Front Benchers have taken a different approach, which is to try to make sure that safeguards are in place and that the balance is right, to produce a reduction in disclosure without leading to miscarriages of justice.
In general, the Bill has the balance right, but I hope that the Minister will accept the two specific amendments about which I have spoken--in particular amendment No. 72, which I believe would make a significant improvement to the balance of the Bill without in any way undermining its purpose, which we support.
The Solicitor-General:
I listened with great interest to the hon. Member for Sunderland, South (Mr. Mullin) on this important topic, which goes to the heart of our reforms. I am a member of the Criminal Bar Association and I practise in the courts. If the regime is going to lead to injustice, I--together with my colleagues in the association--will be engaged in the front line with it. Therefore, I am as anxious as anyone can be to ensure that we put on the statute book a system that gives rise to justice, and avoids some of the horrible miscarriages of justice that have occurred in the past. I urge him not to remain in the past on this issue, as some of the critics of the Bill have done. The Government have learnt the lessons of the past and the structures that we are endeavouring to put in the Bill show that we have learnt those lessons well and truly.
"disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused".
We feel that the words "in the prosecutor's opinion" incorporate in the Bill a subjective test, rather than the objective test that is normal in legislation. I shall not make
the point at length, because I made it strongly in Committee. It is simple and straightforward, and I am surprised that the Government have still not accepted it--unless the Minister is going to surprise and delight us by accepting it in the next few minutes. I suspect that he will not do that.
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