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Lord Ackner had given notice of his intention to move Amendment No. 23:

Page 4, line 12, at end insert ("together with a detailed statement of the facts relied upon and the inferences to be drawn therefrom,").

The noble and learned Lord said: I thank the Minister for agreeing to look at this matter again. Speaking for myself, I am not in favour of boxes being ticked. I do not believe they give much information and the amendment is designed to clarify the position of what the case is all about. One does not discover what the case is all about if one has a little box which says "mistake", "provocation" or whatever may be the short epithet used to describe the nature of the defence without any detail. In those circumstances I shall not move the amendment.

[Amendment No. 23 not moved.]

[Amendment No. 24 not moved.]

Baroness Mallalieu moved Amendment No. 25:

Page 4, line 22, at end insert ("unless in the opinion of the court it is not in the interests of justice for him to do so.").

The noble Baroness said: Clause 5(3), as at present drafted, makes a requirement:

The amendment adds the words,

    "unless in the opinion of the court it is not in the interests of justice for him to do so".

I know that I speak for both sides of the legal profession when I say that there is real concern about the danger of this legislation saddling criminal practitioners with a mass of procedural requirements which, in some cases, everyone agrees, are neither desirable nor necessary. Nor are they in the interests of justice. The purpose of the amendment is to enable the court in an appropriate case to cut this procedure short--in other words, to cut away the bureaucracy.

In a very simple, straightforward case where the accused, for example, has in interview made his defence plain, it would surely be a nonsense if the judge could not say, "This is a case in which the interests of justice do not require the time, trouble and expense"--and I stress, usually public expense--"of all the following steps being taken".

There will also be cases--they are ones which trouble me greatly--where the accused is unrepresented. In some instances the judge may well take the view that it is not in the interests of justice that an unrepresented accused should be required to undertake an important form of criminal proceeding. There may also be cases where an accused person is represented but may be under a disability or, for some reason, unable to give coherent instructions. In such a case a judge may take a similar view.

The amendment is intended simply to deal with those cases where the elaborate procedure which is required to be followed can be short-circuited. A judge who

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thinks it appropriate will have the ability to do so. I hope that the noble Baroness will feel that the amendment is a helpful addition to the legislation. I beg to move.

Baroness Blatch: First, the policy underlying the Bill is that the issues in dispute between the two parties should be narrowed and clarified as far as possible before the trial starts. That will promote the efficient and effective management of the trial. It would be inconsistent with that principle to create exceptions to the requirement to give a defence statement.

Secondly, the amendment provides no procedure for the court to consider the question whether it is in the interests of justice to give a defence statement. I suppose that it would be necessary for the accused to apply to the court and for there to be a hearing. There would be nothing to stop the accused making an application in all cases to be tried in the Crown Court. The number of additional hearings required could bring the business of the courts to a standstill. Because the amendment would insert an additional stage into the disclosure process, it would delay the start of the trial. That is also undesirable.

If the prosecutor comments at trial on the failure to give a defence statement, it will be for the jury to decide what inference may be properly drawn. In so doing it will have the benefit of the summing-up by the trial judge in which he can direct what inference it is proper to draw. If it really is not in the interests of justice for the accused to have given a defence statement, that is bound to affect what inference it is proper to draw, so even in those cases I believe that the Bill does provide. For the reasons that I have given I hope that the amendment will not be pressed.

Viscount Colville of Culross: The noble Baroness really should think again. I quite see that, in the generality of cases she has been talking about, she may be right. But she should consider the possibility of exceptions. For instance, if the issue is going to end up as one of fitness to plead, which is not all that uncommon, there is no point in the defence trying to produce a defence statement. Indeed, it may be impossible to get one because the hypothesis is that the defence will be unable to put forward anything sensible. Therefore, it will be impossible to comply with the subsection in Clause 5.

I believe that there are circumstances where the matter could be brought before the Crown Court on a perfectly simple application or even as a mention, which would enable this provision to be dispensed with because of the particular circumstances of the case. That will not be possible as the clause is currently drafted because it is mandatory and universal. I do not believe that it should be.

Lord Harris of Greenwich: As regards the point made by the noble Baroness, Lady Mallalieu, can the Minister say what will happen if a defendant is not legally represented? Who is going to draw the attention of the accused to the fact that he has to produce a defence statement to the prosecutor? Who has the obligation of informing the unrepresented defendant

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what his responsibilities are? Some of these people are at best semi-literate. It is not at all clear how some of these people are going to undertake the task.

Baroness Blatch: My Lords, the defendant would be represented in court or would represent himself. If a statement of defence were not made it would be for the judge to advise the jury what inference should be drawn. If it was because the defendant was incapable or inadequate for one reason or another, and they were good reasons, that would be a matter on which the judge should advise the jury. I shall read this debate very carefully, as I always do, between the stages of the Bill.

The amendment adds another judicial stage to the process and would cause undue delay. I am saying that in a particular case where there is a disadvantage there is a mechanism within the Bill and the procedure to deal with it.

Lord Williams of Mostyn: Does the Minister agree that that mechanism comes in too late? This is not a partisan point. The criticism which the noble Baroness, Lady Mallalieu, put forward is based--as everyone who has ever practised in a criminal court recognises--on very real problems. The Minister says that an unrepresented defendant is not represented because he is representing himself. I have heard better points in my time. An unrepresented defendant is at a gross disadvantage. Prosecutions in the Crown Court or the magistrates' court are always conducted by professionally qualified people. The burden of this suggestion is one of economy and efficiency of practice. The judge who is controlling the fairness of the procedure should be entitled to waive this condition. In other words, it is trusting the judiciary, in a minority of cases, to waive the absolute necessity which the Bill presently requires.

Viscount Bledisloe: The noble Baroness is in fact saying that here we have an absolute obligation to give a defence statement. Some people will be unable to do it or will have good reason for not doing so. When the judge comes to sum up, he will say, "Members of the jury, you should not take into account at all the fact that there is not a defence statement because it would have been impossible for the defendant to give one and, indeed, it would have been ludicrous to have required him to. But, unfortunately, the statute gave me no power earlier to tell him not to bother". So he is saying, "Parliament has said that this is obligatory, but it is a ridiculous thing not to do and therefore, members of the jury, do not take it into account". I suggest to the noble Baroness, with the greatest respect, that that is not very good legislation.

Baroness Blatch: I have given my answer and I have also given an undertaking to read this debate very carefully. If my answer is insufficient and I believe that something has to be done, that follows the whole process of proceeding in this way through Parliament. I repeat what I said earlier. There is no procedure provided in the amendment for the court to consider the question of whether it is in the interests

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of justice to give a defence statement. I suppose therefore that it would be necessary for the accused to apply to the court and for there to be a hearing. I am trying to suggest that the mechanisms that would have to accompany these amendments would simply add and overlay more procedures. However, I shall consider very carefully all that has been said.

7 p.m.

Baroness Mallalieu: I am grateful to the Minister for what she has just said. She has heard from four noble Lords who are either practitioners or former practitioners, one of whom is now a member of the judiciary, about the real problems to which the absence of such a provision is likely to lead. If the Minister feels, on reflection, that there should be some way of saving time and money and ensuring that justice is done by making such a small amendment, I hope that the Home Office will take that step--even if it requires some additional amendments to provide the mechanism, which could be done in relation to the preparatory hearing stage although perhaps it is more advisable that it happens earlier.

If the Minister does not feel that she can introduce such an amendment I am bound to tell her that I shall have to return to this matter at a later stage. I should be grateful if the Minister could look carefully at what has been said by a number of noble Lords who know a great deal about these matters. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

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