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Baroness Blatch moved Amendment No. 39:

Page 6, line 30, at end insert (", or
(c) which falls within subsection (3A).
(3A) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it.").

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 40 and 41:

Page 6, line 32, leave out ("believes") and insert ("concludes").
Page 6, line 34, leave out ("need") and insert ("must").

On Question, amendments agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Continuing duty of prosecutor to disclose]:

Lord McIntosh of Haringey moved Amendment No. 42:

Page 6, line 41, leave out from ("it") to end of line 43.

The noble Lord said: This amendment seeks the simple removal from page 6, line 41 of the Bill of the words:

It relates to a very important consideration indeed. Clause 9 is concerned with the continuing duty of the prosecutor to disclose. Subsection (2), which is the substantive subsection in Clause 9, refers to the duty of the prosecutor to keep material under review. However, that is constrained by subsection (1), which states that it applies only between the time of compliance with

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Section 3--that is the primary disclosure. I now realise that I should have tabled an amendment to take out the words "purports to" as well, but I failed to do so. But the duty stops at the time of acquittal, conviction or a decision not to proceed with the case.

I turn back to what I said on a previous amendment. A very substantial number of the miscarriages of justice which rightly gave rise to public concern and then to setting up the Royal Commission related to evidence which became available after conviction. Because there was no procedure for continuing obligations, those miscarriages of justice have had to be dealt with in a most unsatisfactory way. There have had to be appeals to the Appeal Court and to the Home Secretary for directions for the matter to be brought before the Court of Appeal again and those procedures have taken not months but years--in some cases many years--before they resulted in a correct conclusion. Some of them have not yet come to a conclusion.

This amendment states that there is a continuing responsibility on the prosecutor after acquittal or conviction, or after a decision not to proceed. It may be asked: who is the prosecutor who can do that? As was pointed out earlier, the prosecutor is an authority--in other words, the prosecutor is, in effect, for this purpose the Crown Prosecution Service. Surely it is not impossible for the Crown Prosecution Service to have a continuing obligation to review matters which might cast doubt on a previous conviction.

In legislation over the past two years we have dealt with other aspects of the miscarriage of justice. I suspect that this is an issue that has been overlooked. It would in fact be economical and efficient to continue the obligation for review on the prosecutor rather than resort to the remedial measures which are provided for in other legislation.

If my interpretation is wrong, I shall listen, as always, to what the Minister says. But it seems to me that there is at least a possibility or probability that this legislation is not in line with other legislation which has been reviewed by this Chamber in recent years. I beg to move.

8.45 p.m.

Baroness Blatch: I hope that I am able to allay the noble Lord's fears. In particular, this measure needs to be taken in conjunction with other legislation.

Clause 9 imposes a continuing duty on the prosecutor to keep prosecution material under review and to disclose it if he thinks that it might undermine the prosecution case. Subsection (1) sets out when the duty starts and when it ends. It starts when the prosecutor makes primary prosecution disclosure. It ends when the proceedings are concluded either with an acquittal or a conviction, or because the prosecutor abandons the case.

This amendment removes the end point. It means that the duty to keep material under review and disclose any material which might undermine the prosecution case continues for ever. The prosecutor must keep all his case files open even though the case has ended, and must keep them all under review in case something happens

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in future which leads him to conclude that material not disclosed during the trial now might undermine the prosecution case--if indeed there was still a case to undermine. He would have to do this even if the accused was acquitted. That is an impossible task for the prosecutor to perform.

As the Bill is drafted, the disclosure requirements in Part I end when the trial ends. If there are subsequent proceedings, for example, because the accused has appealed against conviction, the Court of Appeal will have access to all papers in the case and will be able to decide for itself whether prosecution material should have been disclosed. Even if there are no subsequent proceedings, if the prosecutor becomes aware that undisclosed prosecution material might have rendered a conviction unsafe, he will take whatever action is appropriate, such as bringing the material to the attention of the Criminal Cases Review Commission. But that is very different from requiring him to keep all case files open and all cases under review for ever, as this amendment would require. As I have said, it is impossible for the prosecutor to do that.

In the light of that explanation about taking this Bill in conjunction with other measures that are appropriate if someone finds himself in that position, I hope that the noble Lord will not press his amendment.

Lord McIntosh of Haringey: I readily accept that the amendment is defective in the sense that it provides for indefinite retention and disclosure of material after acquittal or after a decision has been taken not to proceed. It is quite difficult to ask the Minister to try to draft something which provides for the duty to continue only after conviction.

I am still worried about this matter. It seems to me that there are still elements of the prosecution case whose importance only becomes apparent when new evidence becomes available after conviction. We might think about having a restriction--a closing date ending after a decision has been made not to go to appeal or after all rights of appeal have been exhausted. That might be a solution to the problem. But I cannot believe that there is any doubt that much of the justified concern about miscarriages of justice has been about cases in which the new material becomes available which may or may not under the rules of the Court of Appeal lead the case to be referred to the Court of Appeal; or may or may not under the legislation for the criminal cases review authority lead it to be considered by that authority; but which might be hindered if the information available to the prosecution at the time before conviction was no longer able to support or refute it.

I feel that there is an issue here which needs further consideration. It may be that it is a matter to which we shall have to return. For those who are in prison and believe that they have been wrongly convicted, the idea that when files are closed there is no continuing duty on the prosecution to help them seek justice is a deeply unpleasant and damaging thought. We have to bear in mind, as I said earlier, the concerns which have properly existed about miscarriages of justice and we have to make sure that we do not land up in the same position

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in which we found ourselves before the Royal Commission and the legislation following the Royal Commission: that there are technical obstacles to the retention and disclosure of evidence which is relevant to an appeal whether or not the information was gathered before the conviction took place.

As I said, I shall read carefully what the Minister said. I ask leave to withdraw the amendment, but I cannot say that I am entirely satisfied.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Baroness Blatch moved Amendments Nos. 45 and 46:

Page 7, line 32, leave out ("believes") and insert ("concludes").
Page 7, line 34, leave out ("need") and insert ("must").

The noble Baroness said: I have already spoken to Amendments Nos. 45 and 46 and, with the leave of the Committee, will move them en bloc. I beg to move.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Faults in disclosure by accused]:

Baroness Mallalieu moved Amendment No. 47:

Page 7, line 39, leave out ("the accused") and insert ("either party").

The noble Baroness said: Clause 10 deals with faults in disclosure by the accused and provides sanctions where the accused fails either to give a statement or to produce a statement within the specified period; or where he sets out inconsistent defences in that statement or at trial puts forward a defence which is different from that set out in the defence statement given. There are additional provisions in relation to alibis.

For the convenience of the Committee, when moving Amendment No. 47 I shall speak also to Amendments Nos. 48, 49, 51, 52, 55 and 56. I do not pretend that they are perfectly drafted. I can see at once that there are a number of clear errors. But I hope that they will flag for the Minister a point of principle which needs attention when she and her department consider what has been said in the course of the Committee stage.

The present Clause 10 provides for sanctions to be applied where the accused fails to give a statement, does so late, gives one which contains inconsistent defences or, at trial, advances a different defence from that contained in the defence statement. I do not quarrel with any of that. However, as presently drafted, the Bill contains no equivalent provisions for the prosecution. If the object is to be even-handed as between the defence and the Crown; if it is to ensure that the scales of justice are evenly balanced or--to borrow a phrase used by my noble friend Lord McIntosh earlier in this Committee stage--to provide "equality of arms", then there must be sanctions which apply also to the Crown for similar transgressions. If it is right to provide the power for there to be adverse comment where the defence depart from the defence as indicated in the defence statement at trial, surely such sanctions must also be available in relation to the Crown.

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These amendments propose simply to put the prosecution and defence on an equal footing and to ensure that similar sanctions apply to the failures of the Crown. The sanctions provided under this section are that the court, or any other party with the leave of the court, may make adverse comment about them; and that that the court or jury may draw such inferences as seem proper in deciding whether or not the accused is guilty.

I hope that the noble Baroness will feel that, in the light of what was said in particular by a number of noble Lords at Second Reading, this is a point that requires attention even though the amendments may not be in perfect form. I beg to move.

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