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Baroness Blatch: Again, as I understand it, the amendment requires the prosecutor, in addition to disclosing material which meets the test for disclosure under Clause 3, to disclose to the accused any witness statements so far taken by the police. The requirement would apply in both Crown Court and magistrates' court cases.

In so far as witness statements form part of the case against the accused, they will already have been provided in Crown Court cases. They may have been provided earlier as part of advance information in respect of offences which are triable either way. There is no such requirement in relation to summary offences, but the great majority of these are straightforward and are currently dealt with extremely quickly. It would not materially assist the accused to have copies of witness statements in advance. Having to provide them would represent a new and unnecessary burden on the prosecutor and would slow down the delivery of justice in magistrates' courts.

In so far as witness statements do not form part of the case against the accused, they will in any event be disclosed to the accused if they might undermine the prosecution case.

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The noble Baroness will note that I reject the amendment, but she posed a question. I am prepared to say that we shall continue to look at the wording, but at the moment, on the face of it, I believe that the amendment is not acceptable.

Baroness Mallalieu: I appreciate that the noble Baroness has had very little time to consider the amendment carefully. However, I suggest that when she does so she will see the nonsense which results from the Bill as presently drafted. I make it clear that I am dealing only with summary trials where the accused may not see the statements which will be used in relation to the witnesses relied on by the Crown. It must be a nonsense for a prosecutor in such a case, when he does not serve those statements on which he will rely, to be required under the Bill to serve the statements which undermine that material.

I hope that the noble Baroness will look carefully at the Bill in the light of what has been said, as she indicated that she will. I hope that she will feel it right, if necessary, to take steps to introduce her own amendments at a later stage to remedy what is at present an absurdity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 and 10 not moved.]

Baroness Blatch moved Amendment No. 11:

Page 3, line 6, leave out ("believes") and insert ("concludes").

The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 11, I speak also to Amendments Nos. 33, 40 and 45, which have the same effect.

The amendment to Clause 3 is a minor amendment improving the description in the Bill of what a court does in considering whether it is in the public interest to disclose material brought before it for a ruling.

The court must weigh the competing public interests involved. For example, there is a public interest in not revealing the identity of persons who give information to the police which assists the detection of crime. There is also a public interest in disclosing material which would enable a defendant to put forward a tenable case in its best light. As the noble and learned Lord the Lord Chief Justice stated in the 1994 case of Keane, if the material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. However, the court must examine each case on its merits in the light of the particular circumstances. The degree of relevance of the material to the defence is obviously one factor which the court will bear in mind.

Given that the court must conduct a balancing exercise between the competing interests and come to a decision, we think that it is more accurate to say that material must not be disclosed if the court concludes that it is not in the public interest to disclose it than that the court believes that it is not in the public interest to disclose it. Accordingly, Amendment No. 11 replaces "believes" with "concludes" in Clause 3(6), and we have

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tabled identical amendments--Amendments Nos. 33, 40 and 45--to Clauses 7(5), 8(4) and 9(8) to achieve the same effect.

Although he is not in his place, I understand that the noble and learned Lord the Lord Chief Justice also takes the view that "concludes" is a better word to use than "believes" in this context. I beg to move.

Lord McIntosh of Haringey: Who am I to go against the Lord Chief Justice?

This series of amendments serves to propagate the belief that the courts are entirely rational. They do not believe things, they conclude them after an exhaustive process of ratiocination. I wish that were the case. I do not believe that it is true, but I am quite content to go along with the pretence which is contained in the amendments.

Viscount Colville of Culross: I entirely agree with this and the subsequent amendments. However, I should like the noble Baroness to confirm one point.

I am looking at paragraph 6.6 of the draft code of practice. I hope that there is no suggestion that the word "believes" there will be changed to "concludes", because it is very important that the prosecutor should be put under a duty to look very carefully and determine what he believes to be in the public interest to disclose. It is crucial that the prosecutor should put before the court all the material in his possession for the court to decide what is or what is not in the public interest to disclose. I hope that there will be no consequential amendment to the code of practice, because that is a totally different matter when it is in the hands of the prosecutor rather than in the hands of the court.

Baroness Blatch: It is my understanding that the noble Viscount is right in his assumption. However, at this stage the code of practice is not a definitive document and will be subject to change. On this particular point I believe that the noble Viscount is right.

On Question, amendment agreed to.

6 p.m.

Baroness Blatch moved Amendment No. 12:

Page 3, line 8, leave out ("need") and insert ("must").

The noble Baroness said: In speaking to Amendment No. 12 I shall speak also to Amendments Nos. 34, 41 and 46.

Amendment No. 12 is a minor amendment to Clause 3 to make its provisions on intercepted material more consistent with the Interception of Communications Act 1985. As drafted, Clause 3(7) provides that material need not be disclosed if it has been intercepted in obedience to a warrant issued under Section 2 of the 1985 Act or if it indicates that such a warrant has been issued or such material has been intercepted. The intention was to disapply the requirements for disclosure in the Bill as regards intercepted material or material indicating that a warrant had been issued or interception had taken place. Section 6 of IOCA requires the Secretary of State when issuing a warrant to make arrangements to secure that the dissemination of intercepted material is kept to a minimum and that it is

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destroyed as soon as it is no longer necessary to retain it in relation to the purposes for which it is issued. Your Lordships sitting in a judicial capacity decided in the recent case of R. v Preston and Others that the destruction of intercepted material was not only a permissible act but one which those responsible were bound by Section 6 to perform. For this reason, on reflection we have decided that it would be more consistent with the terms of the 1985 Act, as considered in that case, to provide that the prosecutor must not, rather than need not, disclose intercepted material. In addition to this amendment, we have tabled identical amendments--Amendments Nos. 34, 41 and 46--to Clauses 7(6), 8(5) and 9(9). I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Broadbridge): I must inform the House that if Amendment No. 13 is agreed to I cannot call Amendment No. 14.

Baroness Blatch moved Amendment No. 13:

Page 3, line 13, leave out from ("section") to end of line 24 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").

The noble Baroness said: I beg to move.

Lord Airedale: I do not understand the words:

    "a period beginning and ending with such days as the Secretary of State prescribes".

Surely, Secretaries of State prescribe dates "on which" things are to happen, not "with".

Baroness Blatch: The noble Lord raises a particularly pedantic point. However, I shall go away and look at the wording. I hope that in promising to look at the word "with" the amendment will be passed.

On Question, amendment agreed to.

[Amendment No. 14 not moved.]

Clause 3, as amended, agreed to.

The Deputy Chairman of Committees: I must inform the Committee that Amendments Nos. 16, 17 and 18 are amendments to Amendment No. 15. The Marshalled List contains a printer's error. Line 5, to which Amendment No. 16 refers, has been placed on the wrong line of Amendment No. 15. It should be one line higher up.

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