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Baroness Blatch: I beg to move that this clause do not stand part of the Bill.

Clause 4 negatived.

Clause 5 [Compulsory disclosure by accused]:

[Amendment No. 19 not moved.]

Lord McIntosh of Haringey moved Amendment No. 20:

Page 4, line 3, leave out ("or purports to comply with it").

The noble Lord said: This is a probing amendment. It is in one sense defective in that there ought to be another amendment in the same terms to Clause 6 (page 5, line 13). We simply do not understand what is the force of the phrase,

I understand that the prosecutor complies with the provisions, but I cannot understand what is the significance of "purports to comply with it". To me, "purports" means that the prosecutor does not really mean to comply, that he pretends to comply. Perhaps I misunderstand the thrust of the phrase in legal language. I beg to move.

Baroness Blatch: I hope I can be helpful here. Clause 5(1)(b) provides that Clause 5 applies where the prosecutor complies with the requirement to make primary prosecution disclosure in Clause 3 "or purports to comply with it". The amendment removes those words and is a probing amendment, as the noble Lord confirmed.

This formulation is needed because, although the prosecutor may genuinely believe that he has disclosed all material which he thinks undermines the prosecution case, he may not in fact have disclosed all such material. There might be some material in the possession of the police which he has not inspected, although he would be entitled to inspect it, and which (if he had inspected it) he might think undermined the prosecution case. In cases where there is this kind of inadvertent non-disclosure, the prosecutor does not actually comply with Clause 3 but only purports to do so. I notice that the noble Lord looks perplexed at the moment, as I did when I first read this explanation. But even if this does happen in respect of one item of material, the prosecutor will have disclosed all other material which he thinks may undermine the prosecution case, and the requirements in Clause 5 should still apply.

In the light of that explanation, I hope that the noble Lord will agree to withdraw this amendment. The noble Lord still appears perplexed.

Lord McIntosh of Haringey: I can perfectly well understand that the prosecutor can make a mistake, and that he may think he has complied, may intend to comply, may want to comply and may fail to do so. That is perfectly clear. But the word "purports" puzzles me. Surely, the normal phrase that would be used is, "has used his best endeavours to comply", or something of that sort. But "purports to comply" means to me that he is pretending to comply when he has not really done so.

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It is a matter of the meaning of words in the English language. I did not take the opportunity to look up any of the relevant words in the dictionary; perhaps I should have done.

If I am right about the word "purports", I may return to it at a later stage. In the meantime, I am grateful for the explanation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 21:

Page 4, line 5, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 24 and 28. These amendments are concerned with the detailed written case statement which we suggest the prosecution should prepare. This is not the same as the "written witness statements" dealt with in the amendment moved by my noble friend Lady Mallalieu. This is, as it were, the analysed prosecution case statement.

The reason for requesting it is, as I said when speaking to an earlier amendment, not that we want to make life more difficult for the prosecution; on the contrary, we want to make sure that the defence disclosure is adequate because it is based on the proper prior information.

The Bill as drafted requires the defence to set out the nature of its defence, the matter on which it takes issue with the prosecution and the reasons for taking issue with the prosecution, in order to obtain secondary disclosure. If the defence does not produce an adequate defence statement, it may be subject to adverse influence at the trial; or indeed, if the defence is changed after the provision of the defence statement, that may be subject to adverse comment at the trial. So far, so good. That depends on the ability of the defence to produce a proper statement. That in turn depends on a requirement for the prosecution to set out its case at this stage.

I believe I am right in saying that at Second Reading the Minister gave the impression that she thought Clause 5 already provided for that. It is true that in cases to be tried at the Crown Court the defence will have been served with the indictment, evidence which goes to the prosecution case, evidence which appears to undermine the prosecution case, and the schedule of unused and non-sensitive information. But it will not have been provided with a full statement of the prosecution case.

If the defence is required to produce all of that, surely the principle of equality of arms requires that it should apply to the prosecution as well. I use the phrase "equality of arms" deliberately. It is used in Article 6 of the European Convention on Human Rights; and we have been assured that everything in this Bill is in accordance with that convention.

The wording used in these amendments is in the same terms as the wording of what is required for preparatory hearings. So it already has some legitimacy in legislative terms. We believe that there should be the possibility of

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adverse comment if it is not done, as there is the possibility of adverse comment for faults in the defence disclosure. All of this will be dealt with in more detail when we come to Clause 10 of the Bill.

We believe it is important that the defence case should be well enough informed for it to be comparable with the prosecution case, for both of them not to be changed without good reason, and for the prosecution to have been so codified. I do not mean that every single decision has to be made in advance; but the prosecution case has to be set out in such a way that the prosecution does not go on a fishing expedition and build or shape its case on the basis of the defence disclosure. In other words, the same rules must apply to both. That is the purpose of these amendments. I beg to move.

6.30 p.m.

Lord Ackner: This amendment seems to overlap with my Amendment No. 23 and should perhaps be grouped with it. As might have been anticipated, my amendment is less ambitious than that of the noble Lord, Lord McIntosh. It arises in the same way, although I emphasise it in a somewhat different way.

One should bear in mind that the Government's proposals in regard to the obligation cast upon the defence has gone considerably further than that proposed by the Royal Commission. In paragraph 68 (page 99) the Royal Commission reported as follows:

    "In most cases disclosure of the defence should be a matter capable of being handled by the defendant's solicitor (in the same way that alibi notices are usually dealt with at present). Standard forms could be drawn up to cover the most common offences, with the solicitor having only to tick one or more of a list of possibilities, such as 'accident', 'self-defence', 'consent', 'no dishonest intent', 'no appropriation', 'abandoned goods', 'claim of right', 'mistaken identification' and so on. There will be complex cases which may require the assistance of counsel in formulating the defence".

The proposal here has gone a great deal further. Clause 5(3) casts upon the accused the obligation to give a defence statement. That is a statement which--I quote from subsection (4)--sets out:

    "in general terms the nature of the accused's defence"--

that is according to the Royal Commission--

    "indicating the matters on which he takes issue with the prosecution, and ... setting out, in the case of each such matter, the reason why he takes issue with the prosecution".

I do not in any way differ from the proposal to widen the obligation put upon the defence. But what, apparently, is being sought to be done is almost to assimilate the criminal procedure to the civil procedure, whereby the defendant in a piece of civil litigation puts in a defence to a statement of claim which sets out in detail the nature of the claim. That is not done in this case. What is relied upon (under Clause 5(2)(b)) is:

    "a copy of the notice of the prosecution case [served] on the accused under section 5 of the Magistrates' Courts Act 1980".

The prosecution's case is defined in that section as obliging the specification of the charge or charges and the inclusion of a set of documents containing the evidence. That is all. So when the defendant comes to plead to that statement he has probably to infer just how the prosecution is basing its case. What is required--my

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amendment is in a briefer form than that provided by the noble Lord, Lord McIntosh--is an obligation to set out the material facts:

    "a detailed statement of the facts relied upon and the inferences to be drawn".

I have not included all the various matters which would be ordered at a preparatory hearing, anticipating that it might be said that that places too great a burden upon the prosecution. If the prosecution do provide what I respectfully suggest is the bare minimum--namely:

    "a detailed statement of the facts relied upon and the inferences to be drawn therefrom"--

that will enable the defendant, who is anxious to carry out his duty, in particular to indicate (Clause 5(4)):

    "the matters on which he takes issue with the prosecution, and ... in the case of each such matter, the reason why he takes issue with the prosecution".

To expect him to perform those two functions purely on the basis of a statement of the charge and the statements of witnesses is, I believe, asking too much and spoils the whole basis of the operation, which is to say clearly to the defendant, "This is our case. To what extent do you take issue with it?"

That is what the prosecution seeks to find out and I support it in its quest. But if the prosecution wants to find that out effectively, it must set out the nature of its case and the inferences which it wishes to draw from the facts that it specifies.

Therefore, I support the principle behind the noble Lord's amendment, though in due course I should have suggested my amendment in lieu of his if his proved too ambitious.

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