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Baroness Blatch moved Amendment No. 57:

Page 8, line 36, leave out subsection (6).

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Public interest: court to review orders]:

Lord Williams of Mostyn moved Amendment No. 58:

Page 8, line 45, at end insert--
("(1A) In summary proceedings the duties set out in this section shall fall on the clerk and "the court" shall be construed accordingly.
(1B) The clerk to the justices to whom subsection (1A) applies shall be present on all occasions when the court makes an order under sections 3(6), 7(5), 8(4) or 9(8) and should see all relevant information.").

The noble Lord said: I hope that this is an amendment of practical utility, which deals with the problems which will undoubtedly arise in the magistrates' courts. They

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are entirely different to the Crown Courts, where, in most large centres these days, as is well known, there is a liaison presiding judge who is likely to be present on many occasions in a given year. The problem in the magistrates' courts is that the magistrates are not full time and therefore are not likely to be in a position to carry out this work of review.

We have looked at the present clause and commend, of course, the provision of continuous review, but inquire and offer remedy as to who can actually keep matters under review. We suggest that it is fruitless to simply leave it to the magistrates' courts. Everyone who has practised in them knows that on different occasions the Bench will be differently constituted. In the smaller courts it is quite impossible to have the same constitution for one set of reasons, and in the larger courts for different sets of reasons, and again problems arise.

Therefore this is a mechanical amendment to bring about what it seems the Government desire; namely, that there shall be effective, continuous review. On that basis we have suggested that it is better for the clerk to the court to have the specific responsibility of continuous review rather than the court, which can consist of different trios of magistrates on different occasions. We suggest to the Committee that it is quite impossible to expect a Bench of magistrates, perhaps over a period of nine months, 12 months or more, to keep the matter under constant and continuous review. The clerk is much more likely to be able to carry out the work efficiently, consonant with the spirit of the clause as we understand it. I beg to move.

Baroness Blatch: The decision whether it is in the public interest to disclose sensitive material to the accused in criminal proceedings has so far been reserved to a judge or magistrate. Given the difficulty and importance of that decision, I think it is right that it should be taken by a judge or magistrate. The effect of this amendment is that in some circumstances that decision will be taken by a clerk to the justices. Although the clerk may be very experienced in the law, and may advise the justices, he has no judicial authority to determine questions of law or to determine guilt or innocence. I simply do not believe that he is the right person to decide whether sensitive material should be disclosed.

This amendment would also set the authority of the clerk higher than the authority of the justices themselves. The original decision whether disclosure is in the public interest under Clauses 3, 7, 8 or 9 is made by the court, rather than by the clerk. Clause 11 is concerned with a review of that decision. If the clerk decides on reflection that the court has got it wrong, he will order disclosure. There will be no opportunity for the court itself to consider the matter.

The noble Lord may have in mind the difficulties that can arise when a magistrates' court is asked to rule on the disclosure of sensitive material which clearly demonstrates the guilt of the accused. In such cases they are likely to take the view that the public interest in protecting the source of the information must prevail.

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The material will not be disclosed and will not be part of the prosecution case against the accused. But they will be aware of it when they come to decide whether the accused is innocent or guilty. This problem does not arise in the Crown Court because the jury will not know about sensitive material in these circumstances.

This is a problem which the courts already have to grapple with. As the law stands at present, magistrates who hear an application for the non-disclosure of sensitive material have a discretion in the interests of justice to order that the case should be tried by a different Bench. That was the decision in a judicial review earlier this year, R v. South Worcestershire Magistrates, ex parte Lilley. With respect, that seems to me to be the proper course, rather than providing for such decisions on disclosure to be taken by the clerk to the justices. This is not simply an administrative matter; it is a matter of justice, and the clerk to the justices is not an appropriate person to whom such work should be devolved.

Lord Williams of Mostyn: I entirely understand the reasoning which the Minister put forward. Unfortunately, it is not reasoning directed to the problem which I sought to identify. There are problems when a Bench of magistrates looks at material which points to guilt which is then not disclosed. I entirely agree with the Minister that it is appropriate in those circumstances that justice should be seen to be done. Therefore, an alternative Bench of magistrates must try the substantive issue of whether or not guilt is proved. However, that is not my point.

My point--I must return to this because I believe that many magistrates throughout our countries of England and Wales share my concern--is whether, when one speaks of the court keeping under continuous review, the Minister intends that that court--namely, three magistrates--should have the same constitution on every occasion. If not, the system cannot work. I ventured to suggest on an earlier occasion that there will be endless problems in the magistrates' courts, which try significantly more than 95 per cent. of criminal cases in this country. Those significant problems will be added to unless the Minister thinks carefully about this.

I think that there is a sensible argument that questions of public interest disclosure should always be tried by a Crown Court judge rather than by magistrates. If that is not to be allowed for in the Government scheme of things, how will it work? Are the three magistrates to be identical? If not, the work of review is extremely difficult, if not impossible.

I am grateful for the Minister's response, but it is not the whole cause of my concern. I entirely take the point that it may not be seemly or appropriate that a clerk to the justices could overrule his own Bench. What one wants is efficiency in the continuity of review. That is why we tabled the amendment. We simply wanted to alert the Government in a spirit of good nature and seasonal good will, which is always found--certainly from me.

Baroness Blatch: I can concur with that. The noble Lord has suggested that this is a problem. Perhaps I

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could go away and think about the nature of the problem and whether there needs to be a response to it. If I need to, I shall contact the noble Lord between the two stages of the Bill. If not, I have no doubt that the noble Lord will return to this at a later stage.

Lord Williams of Mostyn: I am most grateful for that approach which reciprocates ours. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 59:

Page 9, line 10, leave out ("and the accused").

The noble Baroness said: I shall speak also to Amendment No. 60. The amendment to Clause 11, and the related amendment to Clause 12, are designed to remedy a deficiency relating to applications to the court for rulings on whether it is in the public interest to disclose material.

The current procedure for such applications derives from the 1993 case of Davis, Johnson and Rowe. Depending on the level of sensitivity of the material, the prosecution either tells the defence it is applying for a disclosure ruling, indicating the category of material in question; and the defendant has an opportunity to make representations to the court at an inter partes hearing; or if the material is more sensitive, tells the defence it is applying for a disclosure ruling, without indicating the category of material in question; and the application is heard ex parte; or in a highly exceptional case, makes an ex parte application to the court without giving any notice to the defence. Those procedures have worked well and we intend to embody them in rules made under Clause 12.

As the Bill stands at present, if the court decides, having reviewed the matter, that it is no longer not in the public interest to disclose certain material, it must make an order for disclosure and inform the prosecutor and the accused of its order. But a difficulty would arise if the material were so sensitive that the prosecutor initially made an ex parte application and the court decides on review that the material must be disclosed. In such cases the prosecutor may want to abandon the proceedings without the accused knowing that an ex parte application had been made, so as to protect the source of the material. Clause 11 does not allow him to do that because the accused must be informed of the order, which would defeat the purpose of making an ex parte application in the first place.

Accordingly, Amendment No. 59 to Clause 11(4) provides that, if the court does order disclosure, it must inform the prosecutor but not the accused of its order. That will give the prosecutor an opportunity to decide whether or not to abandon the proceedings. If he decides to continue with the proceedings, it will of course be necessary to disclose the material to the accused, and to inform the accused of the order made by the court.

Amendment No. 60 to Clause 12 completes what is needed by providing for rules of court also to be made governing the practice and procedure to be followed in relation to an order made under Clause 11(4). I beg to move.

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9.15 p.m.

Lord Williams of Mostyn: I can feel the ghost of the late, revered Franz Kafka sitting on my shoulder. I see that the noble Lord, Lord Lyell, points behind me, but it is not visible at the moment. I dissent from the proposition, as I believe most criminal practitioners would, that ex parte applications to courts work well at the moment. They do not. They cause a good deal of trouble and concern, not least to the judiciary. Secrecy is the enemy of justice, and secrecy, if it is required, should be dealt with in very small packets indeed.

I suggest that there is no difficulty in the present circumstances, with the present draft Clause 11, in making a notification to the accused that the court now no longer believes that it is not in the public interest to disclose material. To put it at its kindest, I find severe internal contradictions in the Government's approach. This again, if I may ask the Minister to do this, is an occasion when there should be some rethinking of whether an accused's rights must always be subordinate, and whether or not the balance is not in danger significantly of slipping too far away from the accused's interests, which, in fact, should be coincident with the interests of the community as a whole.

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