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Baroness Blatch: Of course, we are at an early stage of the Bill and I shall always take back points which have been raised and continue to inspect the drafting. My understanding is that the prosecutor is under a duty to disclose information which he believes will undermine the prosecution case, whereas I understand that the effect of the amendment would be for the prosecutor to stand in the shoes of a third reasonable person and make judgments about what a reasonable person might consider to be disclosable material. That could be challenged and could give rise to judicial review.

Lord McIntosh of Haringey: I hope that the effect of a challenge would not be a judicial review. That would be a gross abuse of that process, which is already being abused too often in our legal system. Judicial review should be the last resort when a piece of legislation is inadequately drafted. And I suspect that this legislation is inadequately drafted.

The noble Lord, Lord Campbell of Alloway, made a good point which I did not appreciate the first time that he made it. I am grateful to him for making the point

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so clearly the second time; namely, that it is extremely difficult for an authority, as opposed to an individual, to have an opinion. I am sure that, in turn, he will recognise that I have made it easier for the Committee to understand the point which he makes by including the whole text of the code of practice in Amendment No. 162 so that it is available to all Members of the Committee.

The fundamental point has not been answered; namely, in this series of amendments there should be an objective test of what is and what is not relevant. The Minister describes that as the prosecutor putting himself in the place of a reasonable person. I do not dissent from that. If that is the way in which an objective test is defined in law, so be it. It is right for the prosecutor to do that.

It should not be that the opinion of the prosecutor cannot be challenged subsequently in any way, whether by judicial review or as part of the process of the case with which the disclosure is concerned. It should not be possible for the prosecutor to say subsequently to anybody, whether to a judge making a judicial review or a trial judge, "I may have been wrong but that was my opinion and you cannot do anything about that because the law says that it is only my opinion which matters". That cannot be right. I am not satisfied with the Minister's answer and I should like to test the opinion of the Committee.

5.22 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 67; Not-Contents, 111.

Division No. 2


Addington, L.
Airedale, L.
Archer of Sandwell, L.
Barnett, L.
Beaumont of Whitley, L.
Birk, B.
Bruce of Donington, L.
Carmichael of Kelvingrove, L.
Cocks of Hartcliffe, L.
Craig of Radley, L.
Dahrendorf, L.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaldson of Kingsbridge, L.
Dormand of Easington, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Geraint, L.
Graham of Edmonton, L. [Teller.]
Grey, E.
Hamwee, B.
Hanworth, V.
Harris of Greenwich, L.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hutchinson of Lullington, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kilbracken, L.
Kirkhill, L.
Longford, E.
Lovell-Davis, L.
McGregor of Durris, L.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L. [Teller.]
Ogmore, L.
Peston, L.
Prys-Davies, L.
Rea, L.
Richard, L.
Rodgers of Quarry Bank, L.
Russell, E.
Seear, B.
Sefton of Garston, L.
Serota, B.
Shepherd, L.
Stoddart of Swindon, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Turner of Camden, B.
White, B.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.
Young of Dartington, L.


Aberdare, L.
Abinger, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Astor of Hever, L.
Barber, L.
Belhaven and Stenton, L.
Biddulph, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Borthwick, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Burnham, L.
Butterworth, L.
Cadman, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Chesham, L. [Teller.]
Clanwilliam, E.
Courtown, E.
Craigavon, V.
Cumberlege, B.
Dean of Harptree, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Elles, B.
Elton, L.
Faithfull, B.
Ferrers, E.
Flather, B.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Geddes, L.
Gisborough, L.
Goschen, V.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Harmsworth, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Hooper, B.
Howe, E.
Inchcape, E.
Inglewood, L.
Kenilworth, L.
Kenyon, L.
Kinnoull, E.
Lane of Horsell, L.
Lauderdale, E.
Leigh, L.
Lindsey and Abingdon, E.
Long, V.
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Manton, L.
Marlesford, L.
Merrivale, L.
Mersey, V.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Mountgarret, V.
Moyne, L.
Munster, E.
Murton of Lindisfarne, L.
Nelson, E.
Newall, L.
Orkney, E.
Orr-Ewing, L.
Pender, L.
Pym, L.
Quinton, L.
Rankeillour, L.
Rees, L.
Rennell, L.
Renwick, L.
Romney, E.
St. John of Bletso, L.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathcarron, L.
Strathclyde, L. [Teller.]
Swansea, L.
Swinfen, L.
Thomas of Swynnerton, L.
Torrington, V.
Vivian, L.
Wakeham, L.
Westbury, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

18 Dec 1995 : Column 1443

5.31 p.m.

[Amendment No. 6 not moved.]

Baroness Mallalieu moved Amendment No. 7:

Page 2, line 23, after ("accused") insert ("or assist the defence case so far as it is known").

18 Dec 1995 : Column 1444

The noble Baroness said: As the Committee knows, Clause 3 sets out the duties of the prosecutor in respect of primary disclosure. As I understand it, its purpose is in part to enable the issues between prosecution and defence to be clarified before trial. The purpose of the amendment is, in effect, to clarify the obligations of the prosecutor at that stage and also to seek to clarify the issues between the parties as early as possible.

Clause 3(1), as amended by the amendment, would require the prosecutor to disclose to the accused not just material which would undermine his case but also any material which would assist the defence case "as it is known". If the defendant has maintained his right to silence and said nothing upon arrest or during later interview, or if he has answered questions but has played his cards close to his chest and not shown his defence, then the amendment would have no effect. The prosecution would be able only to guess what the likely defence would be.

However, where the defence, as is usual practice since the Criminal Justice and Public Order Act came into force, has answered the questions put, and, indeed, has revealed the defence clearly to the Crown, it must surely make sense for the prosecution to disclose the material in its possession which assists the defence case.

Judging by her answer to my noble friend Lord McIntosh of Haringey in relation to Amendment No. 5, the Minister seems to be set upon a subjective test for the prosecutor at that stage. The noble Baroness must appreciate, or try to follow, the difficulties which a prosecutor will be placed in by the clause as currently drafted. Perhaps I may just give some instances of the difficulties involved.

A prosecutor faced with the clause unamended will have to decide whether to disclose material which at present he would disclose without question under the existing common law rule. For example, should he or should he not disclose to the defence previous statements made by a witness upon whom he is going to rely whether or not they are inconsistent? Should he disclose earlier accounts by witnesses which are made in the form of notes by investigators or drafts of statements which are later prepared? That is the sort of material which Mr. Justice Henry (as he then was) ordered should be disclosed in the Guinness trial and which has been disclosed subsequently in criminal cases. Should he or should he not show, for example, information in his possession which demonstrates that the complainant--or, indeed, another witness--has been paid or has sought reward for the account that he will give at the trial?

Should or should not the prosecutor disclose unusual situations of which he is aware and on which he has related material; for example, where a witness has been through his evidence in rehearsal for a television programme or has given his evidence as a result of hypnosis? That may sound far fetched, but there are quite a number of cases coming before the courts now where recovered memory syndrome is relevant and hypnosis has led to the initial complaint.

Under the Bill as drafted the prosecutor's decision as to whether to disclose at that primary stage is subjective. Clearly it is for him to try to determine--and a difficult

18 Dec 1995 : Column 1445

task he will have in all those instances and many others--what material undermines his case. The result will inevitably be a considerable degree of inconsistency as between one prosecutor and another. It seems to me that the situation is not only inevitable but also potentially very fraught with danger. I do not pretend that the amendment that I now propose the Committee should consider would remove that danger. However, it does at least give some assistance to a prosecutor who already, from the material before him, knows the nature of the defence. It enables him to ensure that the defence has access to the relevant material to assist it at an earlier stage.

I suggest that it would be ironic if legislation which was intended to prevent what has sometimes been described as the poker game of the defence playing its cards close to its chest and not disclosing the issues were to be turned in effect into a poker game where the Crown was required to withhold material which it knew was relevant to the defence until a later stage in the proceedings. Where material is clearly relevant to a defence of which the Crown is aware, in our submission it must clearly be right that that should be disclosed at as early a stage as reasonably possible so that the issues can be clarified and the establishment of the truth facilitated. I beg to move.

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