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Lord Airedale: I must say that I have had a full and thorough answer from the Minister. That may be partly because I put down my amendments in good time. One does not cure an inelegant phrase by defining it somewhere else in the Bill. However that may be, this is not the first time that I will have disagreed with something said by the noble Lord, Lord Campbell of Alloway. Nevertheless, I must read what the Minister said. In the meantime, I beg leave to withdraw the amendment.

Baroness Blatch: Before the noble Lord sits down, perhaps I may put on record that I believe that the noble Lord said that it is no good defining the phrase in another part of the Bill. It is in fact defined in Clause 3(2) which states:

    (a) which is in the prosecutor's possession, or

    (b) which he has been allowed to inspect in pursuance of a code operative under Part II".
So the definition is included within the same clause.

Lord Airedale: I do not mind where the phrase is defined. Defining something does not make it an elegant expression. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 5:

Page 2, line 21, leave out ("in the prosecutor's opinion").

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The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 9, 10 and 43. With Clause 3(1)(a) we come to what are perhaps the most important few lines in the Bill. They are important, first, because they use the phrase:

    "material which has not previously been disclosed".

Of course, what has been previously disclosed depends upon Part II and the code of practice, which goes only to confirm the view I expressed on Second Reading that Parts I and II of the Bill are back to front. In chronological and logical terms, and to make it easier to understand, we should be pursuing the process from the investigation through to conviction or acquittal and indeed afterwards.

Part I is spelt out in great detail but it is dependent on the code of practice, which is the substance of Part II. We must debate Part II having already debated Part I. That opinion is reinforced by the Minister's reminder that the definition of prosecution material is contained in Clause 3(2)(b), which states:

    "which he has been allowed to inspect in pursuance of a code operative under Part II".

If we are to understand the meaning of that we should be dealing with a code operative under Part II before we deal with the statutory provisions contained in Part I. We have tabled a number of amendments to Clause 3(1)(a) which seek to clarify and strengthen the definition of what must be disclosed by the prosecutor at the primary disclosure stage.

Incidentally, I was most taken aback by what the Minister said in response to the noble Lord, Lord Airedale. She said that if the primary disclosure were to be too wide it would make it impossible to have an effective secondary disclosure. I do not see that at all. It seems to me that one has a primary disclosure which is as wide as is necessary to make the defence disclosure effective. There is no reason why there should be a subsequent secondary disclosure, except when other information has come to light as a result of the primary disclosure. That will still be the case. A three-stage process is not being pursued for the sake of doing so. If it can be cut down one cuts it down. One retains with the secondary disclosure procedure the opportunity for either the defence or the prosecution to make sure that the material which should be disclosed is in fact disclosed. I was not at all impressed by the argument that one must restrict primary disclosure for that purpose.

The particular issue with which we are concerned in these four amendments is the phrase which occurs four times, and which we seek to leave out four times, "in the prosecutor's opinion". It cannot be right for the statutory test of what is disclosed to be in the prosecutor's opinion. Of course the prosecutor must form an opinion, but the statutory test ought to be that which, to use the phrasing of Clause 3(1)(a),

    "might undermine the case for the prosecution".

Otherwise, the prosecutor will form an opinion, however well or badly he may reach that conclusion, and there is no appeal or argument against it. If it turns out to be wrong his defence is, "That was my opinion. I don't hold to it now but it was my opinion at the time and

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it was the basis on which I withheld that material or information". That cannot be satisfactory. It must be the case that in all such proceedings there is in the end, and in the event of challenge, an objective test. It must be possible for the court to decide whether the material was relevant or not and not simply be turned aside by the historical fact that the prosecutor at that time formed the opinion that it was not relevant or did not fall within the terms of Clause 3. I beg to move.

Lord Campbell of Alloway: There is an inter-reaction with paragraph 2(d) of the code of practice, which is a draft code. There the prosecutor is defined as:

    " the authority responsible for the conduct of criminal proceedings on behalf of the Crown".

That authority--an authority--does not have an opinion but, according to the code, it may delegate particular duties to individuals. On delegation, that individual has an opinion. It does not read very happily in context with the way in which the code has been drafted.

Lord McIntosh of Haringey: Perhaps I may respond to that point. I do not believe that my argument for the amendments depends on who the prosecutor is. In introducing them I made it clear that I accept that the prosecutor will have an opinion. That is the case whether there is one prosecutor or a prosecutor delegating his responsibilities to other people. The point is that, unless there is an objective test, when there is a challenge as to whether something falls within the conditions of the clause, as the Bill is drafted there will be a complete answer saying, "That was my opinion. I do not hold to that opinion but that was the case at the time".

Lord Campbell of Alloway: I did not misunderstand the noble Lord. As he put the matter then, he put it quite clearly previously. All I am seeking to show is that, as drafted, if the code goes in the prosecutor is defined as the authority. The authority as such does not have an opinion. The person who has the opinion is the person to whom it is delegated. It is not a nit-picking point. It is a point which, with respect, ought to be addressed.

5.15 p.m.

Baroness Blatch: The point is that the prosecutor has an obligation to disclose. It is for the prosecutor to make a judgment as to what should be disclosed. That must meet the code of practice and the obligations under the law as it would be if the Bill passed into statute.

As I understand it, the main purpose of these amendments is to change the test for primary prosecution disclosure from a subjective test, reliant on the opinion of the prosecutor, to an objective test. In effect, material would be disclosed if in the opinion of a reasonable person it might undermine the prosecution case, rather than if the prosecutor thought it might have that effect.

The effect of an objective test would be to make the decision of the prosecutor subject to review in the courts. If the accused wanted to, he could challenge the decision on whether material undermined the

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prosecution case by seeking a judicial review. I do not think he would succeed in relation to Crown Court cases because the prosecutor's decision would seem to fall within the category of matters relating to trial on indictment which are excluded from judicial review. But no such exclusion applies in summary cases. There would be the potential for delay in a large number of summary cases if the accused sought a review of the prosecutor's decision. Similar considerations apply to the second and third amendments to Clause 3 and also to the amendment to Clause 9.

I also believe that there is a distinction to be drawn between the test for primary prosecution disclosure in Clause 3 and secondary prosecution disclosure in Clause 7. In Clause 3 the prosecutor is required to consider the effect of undisclosed prosecution material on the prosecution case. The only criterion that he can apply is his own judgment. But in Clause 7 the prosecutor is required to consider the effect of undisclosed prosecution material on something other than the prosecution case; that is, on the defence case as disclosed in a defence statement. This makes it easier to consider objectively rather than subjectively what might reasonably assist the defence that has been disclosed. And because the test in Clause 7 is an objective test it is open to challenge in the courts. Clause 8, accordingly, provides for the accused to make an application to the court.

In the light of this explanation, I hope that the amendment will not be pressed.

Lord Campbell of Alloway: That does not quite work. On analysis, it is not a question of judicial review, objective or subjective, or anything like that. As regards non-disclosure in Clause 19(3) there is a sanction for breach of the code. We are not concerned with judicial review at all. My noble friend has not dealt with the curious form of drafting in which an authority has an opinion. That was the point to which I was addressing my criticism.

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