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Baroness Blatch moved Amendment No. 15:

After Clause 3, insert the following new clause--

Primary disclosure: further provisions

(".--(1) This section applies where--
(a) the prosecutor acts under section 3, and
(b) before so doing he was given a document in pursuance of provision included, by virtue of section 17(3), in a code operative under Part II.
(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.").

The noble Baroness said: The government new clause after Clause 3 is designed to replace Clause 4. As currently drafted, Clause 4(1) requires the prosecutor, when he makes primary prosecution disclosure, to give the accused a document that indicates the nature of

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undisclosed prosecution material relating to the offence which the prosecutor believes is not sensitive. Subsections (2) and (3) then define what is meant by "prosecution material" and "sensitive". Because there is no direct reference to what is done in pursuance of a code of practice under Part II, the clause implies that this is a separate document prepared by the prosecutor on the basis of the material obtained by the police. What happens at present--and what we intend to happen in future--is that the prosecutor gives the accused the schedule of non-sensitive material prepared by the police rather than creating a separate document. The new clause after Clause 3 replaces Clause 4 in its entirety. It applies where the prosecutor makes primary prosecution disclosure under Clause 3 and, before doing so, has been given the schedule of non-sensitive material referred in Clause 17(3). He is to give that schedule to the accused at the same time that he makes primary prosecution disclosure. I beg to move.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 15, Amendment No. 16:

Line 5, after ("section") insert ("17(2A) and").

The noble Lord said: I indicated a desire to take together Amendments Nos. 16 to 18 and 88. Somehow, in the groupings, Amendments Nos. 15 and 88 have been separated, although clearly they should not be. Amendment No. 16 has to be debated before Amendment No. 15 can be agreed.

I recognise that in some respects the new Clause 4 is a better clause than the one in the Bill as printed. On this occasion I do not refer to the constitution of the Labour Party. The advantage of the new Clause 4 as proposed in Amendment No. 15 is that it makes clear that the document to be disclosed is to be produced by the police, not compiled by the prosecutor from police material. That is very welcome. It is also true that the new clause is considerably simpler than the existing clause. I suppose that, even in the absence of the noble Lords, Lord Renton and Lord Campbell of Alloway, we must be grateful for that.

There are still very substantial defects in the new Clause 4, and very substantial ways in which the document referred to is not securely the schedule to which the Royal Commission referred and to which the Minister was good enough to refer in letters to me before Second Reading. It is important that this should not simply be a document which indicates the nature of material, as provided in Clause 17(3), but that it should be specifically a schedule, that it should be complete, that the police should have the duty to ensure that what they provide is complete, that the prosecutor should have the duty to ensure that the disclosure document that he issues is complete, and that the accused should have adequate power to demand the relevant information. That is what my amendments provide for.

Amendment No. 16 is a paving amendment for Amendment No. 88 which provides in Clause 17 a further condition that the prosecutor must be given any material prepared under subsection (2) referred to in new Clause 4, must have access to the material indicated in it, though not necessarily have it in his possession, and may amend the document having himself reviewed

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whether or not it is in the public interest that it should not be disclosed to the accused. The importance of this is that the Bill as drafted, and as it is being redrafted, still provides that it is the police who decide what is sensitive and what is or is not in the public interest rather than the prosecutor. In our view, the prosecutor should make that decision, not the police. In later amendments we deal further with the issue of sensitive material. We have amendments in Part II which spell out in more detail what is listed in the code of practice as sensitive material. It will be seen that the list is very wide. The decision as to what is sensitive and to what is not and what is in the public interest and what is not is a matter of considerable public importance. It should be the prosecutor rather than the investigator who has that responsibility. That is the purpose of Amendments Nos. 16 and 88.

Amendment No. 17 provides that the prosecutor has the responsibility to ensure that the document lists all the material relevant to the offence, the offender or the surrounding circumstances of the case, whether or not the prosecution intend to rely upon the material, in sufficient detail to enable the material to be correctly identified. This is the crux of the matter as far as the schedule is concerned. This is what a schedule is for. It is a complete list of documents compiled in such a way that they can be identified so that the defence can interpret what they mean. On the basis of those documents and only on that basis, the defence can make an adequate disclosure in response. I believe that the wording in Amendment No. 17 is much closer to the original intention of the Royal Commission than either the consultation paper published earlier this year or this Bill. Despite the well meaning and helpful words of the Minister, we would wish the provision for an adequate schedule to be on the face of the Bill.

Thirdly, Amendment No. 18 is again an amendment to Amendment No. 15. It would allow the accused to have increased power to demand material:

    "in order to determine the full circumstances of the case before determining appropriate defence disclosure".

The accused may therefore apply to the court. It is not a matter for negotiation between prosecution and defence; it is a matter where the accused would apply to the court for further material to be made available. The purpose of all that is not to try to make life more difficult for the prosecution. Far from it. Its purpose is to ensure that a defence disclosure is properly made in the light of the facts that ought to be available to the defence in order to make a defence disclosure.

It has been our position all along that there should be a defence disclosure, although we shall come to the terms of that disclosure later. However, it must be on the basis of the necessary information from the prosecution in the first place. So although we welcome the thrust of some of the amendments in the new clause and the improvements which are made in it, there are still a number of significant points on which the Bill needs to go further than it does. I beg to move Amendment No. 16.

Baroness Blatch: The amendments would provide for the prosecutor to be given the schedule of sensitive

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material and to have access to all material listed on it and would allow him to amend the schedule in the light of his own decision about whether it was in the public interest to disclose the material listed.

The amendments would also insert a reference to the sensitive schedule, which may have been amended, into subsection (1)(b) of the new clause after Clause 3. In conjunction with subsection (2), that would mean that the prosecutor would have to give the accused both the non-sensitive and the sensitive schedules. The amendments would also require the prosecutor to ensure that the document he was given listed all material relevant to the offence or the offender or the surrounding circumstances of the case, whether or not the prosecution intends to rely upon the material, in sufficient detail to enable the material to be correctly identified.

The amendments would also enable the accused to apply to the court for the disclosure of undisclosed material on the document if he reasonably believed that he needed to see it in order to determine the full circumstances of the case before making a defence disclosure. That amounts to a very different disclosure scheme from the one in the Bill. There are a number of serious difficulties with it.

The accused would automatically have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. That would significantly impede the fight against serious crime. Despite all the developments in the law on disclosure in the past few years, no responsible person has ever questioned the need to protect sensitive material such as that. I cannot believe that the noble Lords intended their amendments to have that effect.

On the other hand, if the sensitive schedule is not to be given to the accused, the amendment to Clause 17 is unnecessary. The draft code of practice already provides for the prosecutor to receive the sensitive schedule and to have access to all sensitive material. There is no need to amend the schedule if it is not to be given to anyone. The proper course is for the prosecutor to consider whether any sensitive material falls within the tests for disclosure and, if it does, to seek a court ruling on whether it should be disclosed. Depending on the court ruling, the prosecutor then acts accordingly. If sensitive material does not fall within the disclosure tests, then it is effectively protected by not disclosing either the material or the sensitive schedule.

Also, the accused would effectively have access to all prosecution material if he could make out a case for it to the court. How is the court to know whether the belief of the accused that he needs to see prosecution material is reasonable? At that stage the accused will have disclosed no information about his defence; there is no criterion by which to judge the reasonableness of any request.

More generally, if the accused has access to all prosecution material before making a defence disclosure, we have returned to the current disclosure regime. It would be open to the accused to trawl through all the material in the hope of finding something which the prosecution could not disclose, thereby forcing the abandonment of the proceedings, or simply to elicit

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promising lines of inquiry rather than material supporting his own version of events. I am afraid that that is completely contrary to the principles underlying Part I of the Bill. I may say too that it is a bit at odds with the sentiments expressed by the noble Lord, Lord McIntosh, when he spoke at Second Reading, because it seriously changes the nature of the Bill.

The noble Lord made a point about the police deciding themselves what should be sensitive. The police will, of course, take an initial view on whether material is sensitive for the purposes of preparing the schedules. But it will still be for the prosecutor to decide whether material should be disclosed and whether material from all that is retained needs to be put before the court for a ruling because of its sensitivity. For those reasons, I hope that the Committee will reject the amendments.

6.15 p.m.

Lord McIntosh of Haringey: I have listened carefully to what the Minister said. She has certainly pointed out a major respect in which the amendments go further than I had intended. For that, I apologise to the Committee. It was never my intention to secure that a schedule of sensitive material should be made available to the accused. My intention was to ensure that the police were not responsible for the final decision about what was sensitive and what was not. The prosecutor is responsible for that decision.

Again, I have listened to what the Minister said. If she is right that it is the responsibility of the prosecutor, then she will hear no more of this. I am not sure what is meant by the initial view taken by the police and what force that has in the interaction. Of course, we must now talk about "revealing" and not "disclosing".

I believe that, as in Amendment No. 17, it is right that the prosecutor should have the responsibility of ensuring that the disclosure document is complete. I recall that the Royal Commission said that both parts of the process--the compilation of a schedule by the investigator and the compilation of a schedule by the prosecution--should be subject to a signed certificate. We shall come to that point when we deal with the issue of the named officer.

I also believe that it is right, as in Amendment No. 18, for the accused to have the increased power to demand material. However, it was never my intention--and I apologise for the fault in the wording--that the accused should have access to a schedule of sensitive material. As the Minister said, in many ways that would undermine the force of the proposals made in the Bill. I do not wish to do that and, on that basis, I beg leave to withdraw Amendment No. 16.

Amendment No. 16, as an amendment to Amendment No. 15, by leave, withdrawn.

[Amendments Nos. 17 and 18, as amendments to Amendment No. 15, not moved.]

On Question, Amendment No. 15 agreed to.

Clause 4 [Primary disclosure: further provisions]:

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On Question, Whether Clause 4 shall stand part of the Bill?

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