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Baroness Blatch: My Lords, the first amendment seeks to change the test for primary prosecution disclosure from a subjective test that is reliant on the opinion of the prosecutor to an objective test. Material would be disclosed if, in the opinion of the reasonable prosecutor, it might undermine the prosecution case rather than if the individual prosecutor thought that it might have that effect.

I have to confess to doubts over whether the amendment would make any difference in practice. These provisions of the Bill plainly place the prosecutor under certain duties of disclosure. In discharging those duties the prosecutor will, as always, be bound by professional ethics and specifically, if he is a member of the Crown Prosecution Service, by the code for Crown prosecutors which requires him to act so as to secure a fair trial.

In considering what material is required to be disclosed to the accused, the prosecutor will bring his best judgment to bear. The amendment would require him to consider what the opinion of a reasonable prosecutor might be and not just, as the Bill does now, what is his opinion. Surely it is human nature for us to assume that our opinions are the opinions of a reasonable person. Surely a prosecutor will form his opinion on the assumption that it is a reasonable one, especially if he is acting in a professional capacity and discharging duties prescribed by statute. So I do not think that in practice the amendment would achieve any improvements in the way the disclosure regime operates. It seems strange that a prosecutor performing a public duty under an ethical code as well as under a duty to act fairly and reasonably must somehow or other think of another reasonable prosecutor's judgment.

Lord McIntosh of Haringey: No.

Baroness Blatch: That is the effect of the amendment. He must actively think how a reasonable prosecutor would make the judgment. The assumption is that he is not a reasonable prosecutor or a prosecutor thinking reasonably and acting ethically under the codes to which he is bound.

Viscount Bledisloe: My Lords, does the noble Baroness not appreciate that, as the matter stands, if someone challenges the decision of the prosecutor, that person is bound by the prosecutor merely standing up and saying, "That is my opinion. However unreasonable it may be, that's my opinion and that's the end of the matter"? If the word "reasonable" goes in, the judge can say, "Your opinion is not reasonable. Therefore you have to do it".

Lord Campbell of Alloway: My Lords, does my noble friend not appreciate that a perfectly reasonable prosecutor, because he is human, can act unreasonably?

Baroness Blatch: My Lords, there is a real distinction between what the amendment says and what has been suggested in the course of discussing the amendment. We would all want the prosecutor to

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act reasonably and we would all want to see that something could be done about it if he was not acting reasonably. However, the amendments ask him in effect to think how a reasonable prosecutor might think. What we want is a prosecutor thinking reasonably and fairly in coming to a judgment about what should be disclosed. There is a distinction in the suggestion made by the noble Lord, Lord Williams of Mostyn, and supported by the noble Viscount, Lord Bledisloe. I should like to take that away and reflect upon it between now and the Third Reading.

Lord McIntosh of Haringey: My Lords, I am grateful for the Minister's final remarks. I should like to think that there is a genuine misunderstanding about the purpose of these amendments. I recognise that the point made by the noble Viscount, Lord Bledisloe, is marginally different from the one I am making in the amendment itself. I still think that to take out the words "in the prosecutor's opinion" does not mean that the prosecutor has to stand behind himself and pretend he is someone else. What we are seeking to do is to put on the face of the statute what the Minister has rightly described as the ethical rules under which prosecutors have to operate.

The trouble with the ethical rules under which prosecutors have to operate is that they may change and Parliament will not know. I have great faith in the director of the Crown Prosecution Service and I have no reason to suppose that the service is deliberately acting unethically. But I do say that the way my amendment is drafted still provides that the prosecutor has to make up his own mind about the matter of disclosure. That is a matter of fact. There is no other way of doing it. He cannot appeal to someone else. What I am saying is that if, under my amendment, his opinion is not the final arbiter or, under the type of amendment suggested by the noble Viscount, Lord Bledisloe, he is required to be reasonable in coming to that conclusion, there is something which can be objectively tested afterwards.

I am very much encouraged by the support of the noble Lord, Lord Campbell, and the noble Viscount, Lord Runciman, and by the support also, with a slight difference, of the noble Viscount, Lord Bledisloe, and the most effective support of my noble friend Lord Williams of Mostyn. On the basis of the Minister's undertaking to think again, and on the basis that we may indeed be looking for the same solution, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 8:

Page 2, line 22, after ("accused") insert ("or which in the interests of justice should be disclosed").

The noble Lord said: My Lords, Amendment No. 8 covers a different point but it is one of very considerable importance. We have thought carefully about the wording since we covered the same issue in Committee. What we sought to do before was to alter significantly the wording of Clause 3(1)(a), which is perhaps the most important single subsection in the whole of Part I. It is the subsection

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which triggers the definition of what material has to be disclosed by the prosecutor under the primary disclosure provisions.

We have talked about the prosecutor's opinion. In Committee we expressed our unhappiness about the inadequacy of the phrase,

    "might undermine the case for the prosecution".

It is very difficult, we confess, to come up with a positive phrase that would adequately express our concern for the equality of arms which, I think it is agreed on all sides of the House, is the basis of the disclosure provisions. Therefore, with some regret, we have fallen back on a form of words which leaves it to the judges. In other words,

    "which in the interests of justice should be disclosed",

enables, in the case of any query, the judges to say that they have the responsibility in their interpretation of the law for the interests of justice and under those circumstances they think that the prosecutor did or did not behave properly in exercising his powers and responsibilities under the Criminal Procedure and Investigations Act 1996.

I would much prefer a form of words which explicitly expressed our desire for equality of arms. However, I recognise the difficulties and I recognise the defects of the wording we sought to use last time. I hope, therefore, that our fall-back position, which is to rely, I suppose, on the ethical principles on which our legal system is based, will be acceptable to the Government and to the House. I beg to move.

Lord Campbell of Alloway: My Lords, I am afraid that I have to oppose the amendment. The noble Lord, Lord McIntosh of Haringey, has certainly been straightforward with your Lordships, as he always is. It is a fall-back amendment. There are difficulties in its drafting. It is far to vague, it is far too woolly, it is not necessary, and it would be the source of vast confusion. I have to oppose it hull down.

Baroness Blatch: My Lords, as drafted, Clause 3 provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which, in the prosecutor's opinion, might undermine the case for the prosecution. As my noble friend Lord Campbell of Alloway has said, this amendment considerably widens the test for prosecution disclosure to include material which should be disclosed "in the interests of justice". In doing so, it imposes an obligation on the prosecution, as opposed to the current discretion, to go beyond the current requirement of primary prosecution disclosure. It thus dismantles the reciprocal nature of the disclosure scheme whereby further prosecution disclosure is subject to disclosure by the accused.

It is worth recording that throughout the trial the prosecutor remains under a continuing duty to disclose. If the amendment were accepted, the improvements in the disclosure regime, which the Government believe are needed and which the Bill

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seeks to make, would not be secured. The whole purpose of, and rationale for, the Bill would be undermined by the amendment.

Lord McIntosh of Haringey: My Lords, I confess that I find that an extraordinary answer. All the amendment says is that there shall be a further test in the interests of justice. It does not in any way seek to undermine any of the subsequent procedures or the duties and responsibilities of the prosecutor. It simply says that there shall be an objective test, as there is in so much legislation, including this legislation. This is what happens at the present time. I am sorry that we do not have the support of the noble Lord, Lord Campbell of Alloway. I do not really know what "hull down" means, but it sounds very threatening. In view of the quite unequivocal rejection of this amendment by the Minister and in view of its importance and that of the test for primary disclosure, it is necessary to seek the opinion of the House.

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