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Lord McIntosh of Haringey moved Amendment No. 1:

Page 1, line 8, leave out from ("applies") to end of line 20 and insert ("to any offence in respect of which a person charged has not already indicated an intention to plead guilty").

The noble Lord said: In moving the above amendment I should like, with the leave of the Committee, to speak also to Amendments Nos. 14, 19, 29, 61, 62 and 130. The amendments are designed--which I believe the Committee will find throughout the Bill--to help the Government to produce a sensible, rational and workable procedure for disclosure, rather than being wrecking or damaging.

We made it clear on Second Reading that we support the principle of the Bill and our concern is to ensure that it works properly. This is the classic case where inadequate thought has forced the department and the Government to propose something which is simply unworkable. The Bill proposes that there should be primary disclosure by the prosecution--we shall deal in later amendments with what that primary disclosure should be--only when the accused has pleaded not guilty to the charge or when the matter has been referred to the Crown Court. That is madness. If the defence is not going to receive the information from the prosecution as to the nature of the case until a plea of not guilty has been made, any solicitor in his right mind will advise his client to plead not guilty in order to get hold of the material.

Let us not forget that the Bill covers not only major cases in the Crown Court and major miscarriages of justice (which prompted the setting up of the Royal Commission in the first place) but also every single small case appearing before magistrates. It is a Bill which is about riding a bicycle without a light; indeed, it is a Bill which is about almost everything except tiny

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traffic cases which are dealt with outside the court. At present in nearly all of those cases the accused goes to the magistrates' court knowing what the charge is but hearing for the first time on that occasion the case against him and acting accordingly. In other words, the matter can very often--indeed, normally--be dispatched rapidly.

However, where the defendant has a solicitor or is smart enough himself he will say, "In normal circumstances I would let it go; I would assume that they had enough to convict me. I know what is in their case and, therefore, I shall leave it alone and let the normal procedures take place". But now, under the proposed procedures, the solicitor or the accused may say, "I don't know. It may be worth while pleading not guilty to see whether they have enough evidence". That is what he will do and the courts will be clogged up with all the minor cases which could have been disposed of in the speedy and effective way that they are now dealt with.

I can assure the Committee that we are trying to help the Government. We are trying to make it a workable Bill. The Minister said on Second Reading that the prosecution might be unable to prepare its evidence for disclosure at an earlier stage than that envisaged in the Bill. But, now we have seen the code of practice, we see from that document that once the investigation is over the police will be obliged to prepare a detailed schedule of evidence for the prosecutor and pass on material which supports or appears to undermine the prosecution case. Therefore, we now know from the code of practice what we did not know on Second Reading; namely, that the information will actually be there. It will have been produced to the prosecutor almost as soon as the investigation is over.

I turn now to Clause 34 which provides for the accused in either-way cases to indicate a plea in advance. The idea, very sensibly, is to make savings in preparation work which would be unnecessary if the accused were going to plead guilty. But the fact that the information will not be available from the prosecution until a plea of guilty has been entered means that Clause 34 will not work properly. Indeed, Clause 34 could actually be extremely effective if it were not for the Bill's provisions as presently drafted.

There is no good reason why that information which we now know will be available should not be passed on to the defence straight away, without waiting for a plea of not guilty. I urge the Government in their own interests to accept at least the principle of the amendments. They may be complex, but I am sure that they are right. I beg to move.

Lord Campbell of Alloway: The principle of the noble Lord's speech and of the amendment warrants serious consideration with reference to the code of practice and Clause 34 for the reasons that he gave. I only ask that that consideration may perhaps be given.

Baroness Blatch: My Lords, the amendments offer an alternative description of the circumstances in which Part I of the Bill is to apply. Instead of describing the circumstances with reference to the classification of the offence and the mode of trial, Amendment No. 1 would

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apply Part I to all cases where the accused has not indicated an intention to plead guilty. As I understand it, Amendments Nos. 19 and 20 are purely consequential on Amendment No. 1.

However, Amendments Nos. 14 and 130 would effect a serious change of substance. So far as concerns offences which are triable either way, the amendments between them would require the prosecutor to make primary prosecution disclosure, and to give the accused the schedule of non-sensitive material, in a period of time which begins when the accused is charged and ends when the mode of trial decision is taken under Clause 34 of the Bill. This means that a schedule would have to be prepared, and the prosecutor would have to consider what material needed to be disclosed and disclose it in all these cases whether or not the accused intended to plead not guilty. Either way, in cases where the accused intends to plead guilty, disclosure is not needed. That is why the Bill does not require primary prosecution disclosure under Clause 1(1) until a not guilty plea has been indicated and the court proceeds to summary trial. The amendments would place a heavy and completely unnecessary burden on the prosecutor.

Members of the Committee opposite have argued that the accused needs to know what the prosecutor thinks might undermine the prosecution case before he decides whether to plead guilty or not guilty, and that in the absence of prosecution disclosure he will simply plead not guilty to see what turns up. I disagree. The accused will have received advance information under the Magistrates' Courts (Advance Information) Rules 1985, consisting of either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings. That is designed to enable him to make an informed decision about mode of trial. He does not therefore also need to know what might undermine the prosecution case to determine whether he should plead not guilty and whether he should elect Crown Court trial.

I must also point out that Amendment No. 14 will fall if the Committee accepts the separate government amendment replacing Clause 3(8) and (9), which is Amendment No. 13 and which will be moved first. Although it may make no difference in practice, the amendments would also make a substantive change to Clause 14. They abolish most of the common law rules on disclosure, effective immediately before Part I is brought into force, from the moment a person is charged with an offence (rather than from when he pleads not guilty at a summary trial) or the proceedings are transferred to the Crown Court. For those reasons I hope that the amendment will not be pressed.

3.30 p.m.

Lord McIntosh of Haringey: I am disappointed, and the Committee will be disappointed, that the Minister has chosen to look at drafting considerations in later amendments rather than address the thrust of the most important amendment, which is Amendment No. 1. No attention whatever was paid in the Minister's reply to what I said about the process in a magistrates' court.

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There was no acknowledgement that if a full statement is available only after a plea of not guilty, a solicitor or an intelligent defendant is going to plead not guilty in order to obtain the statement of evidence, at the very least on the basis that the evidence may be incomplete in some way or may provide further support to a defence case. The Government, in rejecting these amendments in effect out of hand, are doing enormous damage to the practical effects of the Bill and the chance of it working properly.

Baroness Blatch: I am grateful to the noble Lord for giving way. I have been accused of not referring at all to that particular point. In fact I did refer to it. I said that the accused will have received advance information under the Magistrates' Courts (Advance Information) Rules 1985, consisting of either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings. That is designed to enable the accused to decide how to plead.

Lord McIntosh of Haringey: There is a considerable difference between information which is made available under rules which can be changed without parliamentary approval and a new wholly statutory provision--as there is in Part I--for primary disclosure by the prosecution. The opportunity should have been taken, following the report and the recommendations of the Royal Commission, and indeed following the consultation which took place on the publication of the consultation paper, to make sure that the facilities which are available to the defence under the principle of equality of arms should be made available by statute, as elsewhere in the Bill. The Minister's reply is not satisfactory; it is a self-contradictory response. I shall have to seek the opinion of the Committee on Amendment No. 1.

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