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Lord Ackner: My Lords, in view of the criticism just made by my noble friend, I wonder whether he has overlooked Clauses 24 and 25. I say that because the wording used in the amendment seems to me to have been lifted out of the legislation itself.

Viscount Runciman of Doxford: My Lords, I should like to welcome and endorse the remarks made by the noble and learned Lord, Lord Ackner, while entirely appreciating the force of the rejoinder by the noble Lord, Lord Campbell of Alloway, with whom I entirely agree as regards the unpredictability of consequences. We are all agreed that we want earlier and better preparation of criminal trials--and I believe that we all agree in the House that the thrust of the Bill will achieve that aim--but the question is whether precisely the right balance has been struck or, indeed, as nearly as is practicable. I believe that the noble and learned Lord, Lord Ackner, is right to say that there is a danger in the Crown trying to have it both ways.

In the great majority of cases I believe that the procedure should be fairly straightforward in practice. I am not persuaded that the ticking of boxes is quite so naive a procedure as the noble and learned Lord suggests. I say that because, as we all know, the overwhelming majority of cases--even those which go through the Crown Court; and I say nothing of the magistrates' court--are relatively straightforward.

I am sure that most of us in this House are very concerned about the complex as well as the serious cases; and, indeed, particularly the serious and complex cases. It is in that respect that I believe there is a real risk that justice will not be done if--and I echo again the words of the noble and learned Lord, Lord Ackner--the Crown tries to have it both ways. I hope that Ministers will be willing to take that point as seriously as I am quite sure it deserves to be taken.

Lord Williams of Mostyn: My Lords, I should like to express my support for the amendment. Indeed, the key to its support is to be found in the speeches just made by the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Runciman. It cannot be overstressed that most cases--and I shall no doubt be disbarred for saying this--in the Crown Court tried under criminal procedures are relatively simple and straightforward. Ticking the boxes, which is a rather crude description of what the Royal Commission recommended, is utterly adequate and sufficient for the overwhelming bulk of those cases.

If one looks at what the amendment requests, one finds no more than the defendant would find in the competent opening by competent prosecution counsel of the case against the defendant, which the latter would then hear for the first time as he sits in court having

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been arraigned on the first day of the trial. I echo the phrase of the noble Viscount: if the Crown wants earlier and better disclosure, why cannot that be done in the suggested form before the opening that I have just described?

Any opening will deal with these matters: why are the facts contended; what are the propositions of law; who are the witnesses generally to be relied upon; and, what are the consequences which follow? That is no more than would be disclosed in the opening to a trial. If the view of the present Government is that further disclosure is required for the efficient and just management of a criminal justice system, it seems to me that there is nothing to be said in principle against the thrust of the amendment.

Lord Mackay of Drumadoon: My Lords, the House will recall that the issues were debated in Committee and that consideration was given to the proposals which would require the service of a prosecution case statement upon the accused in the terms set out in the first amendment. It is clear from the reference that the noble and learned Lord made to previous correspondence involving my noble friend the Minister that the Government have thought about the matter most carefully. But, having done so, the Government remain of the view that to require a prosecution case statement in every case would be undesirable and would place an additional burden on the prosecution without materially assisting the accused in every case to which, of course, the amendment refers.

The noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Runciman, referred to a balance having to be struck. In my submission, an appropriate balance has been struck. In all cases which are transferred to the Crown Court for trial, the prosecutor must serve specified information about his case so that the accused knows what is the case against him. In general, that information will be a notice of the prosecution case which specifies the charges against the accused in relation to the proceedings being transferred. It will also include a set of documents containing the evidence on which the charges are based. In two special kinds of case--namely, serious or complex fraud and certain violent or sexual offences involving children--the information will be a copy of the documents containing the evidence to which a notice of transfer given under the relevant legislation refers.

The information is a full account of the evidential material on which the prosecution would propose to rely. I beg to suggest that, in almost every case, it will leave no doubt whatever about what the prosecution case is against the accused. Where that is so, requiring the production of an additional document which contains information about the prosecution case will add nothing to the primary evidence. I do not believe that the accused needs such an additional document in the circumstances proposed in order to comply with the requirements on him in Clause 5 of the Bill. Indeed, upon the basis of information already given, he will be well able to indicate the matters upon which he takes issue with the prosecution and the reason why he does so.

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Where a case is so complex that it requires a secondary document in order to steer and navigate through the prosecution evidence, it seems to me, on the basis of my understanding of the procedure in England, that it would be likely to fall within the class of case where the judge may order a preparatory hearing under Clause 22, either at his own instance or by way of an application from the prosecutor; or, indeed, from the accused man himself. In such a case a detailed prosecution statement will then be provided.

The only effect in practice would be to add to prosecution costs and inject a further element of delay in bringing cases to trial. I understand that the Crown Prosecution Service has estimated that it would add some £4.5 million to its costs to produce such a statement in each and every case. I submit that that expenditure would not be justified.

The content of the prosecution case statement to be required in all cases would indeed be the same as in a preparatory hearing. However, as I have already suggested, a preparatory hearing is designed only for potentially long or complex cases and not the relatively straightforward case to which the noble Lord, Lord Williams of Mostyn, has referred. In those long or complex cases the benefits of having the statement outweigh the burdens which may be imposed by the preparation stage and certainly outweigh the burden of any expense that may be incurred. However, that does not apply in the generality of cases. For those reasons I invite your Lordships to take the view that what is proposed would not carry sufficient benefits to outweigh the disadvantages that I have mentioned.

I shall now discuss Amendments Nos. 30 to 35. The House will again recall that we debated these amendments in Committee. As my noble friend Lady Blatch explained on that occasion, the Government consider that there are good reasons for Clause 10 to remain as it is. The Royal Commission on Criminal Justice recommended that the accused should be required to disclose information about his case. It foresaw the possibility of the accused attempting to evade the requirement in some way and for that reason it recommended sanctions in the form of the drawing of inferences in certain circumstances. These were putting forward a defence at trial without giving any indication in advance; or relying on a different defence at trial from the one disclosed earlier; or disclosing in advance a number of inconsistent defences. The Government accepted this recommendation and Clause 10(1)(a), (c) and (d) give effect to it. The effect of Amendments Nos. 30 to 35 would be to depart from the Royal Commission's recommendation in applying paragraphs (a) and (d) to both parties to the proceedings, and removing paragraph (c) altogether.

The effect of removing paragraph (c) is that it will be open to the accused to set out any number of inconsistent defences in a defence statement so as to trigger the maximum possible disclosure of additional material by the prosecutor, whether or not he intends to rely on any of those defences, and to do so without any sanction. It will completely undermine the scheme in the Bill.

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In relation to the other amendments, the Bill does not provide for an inference to be drawn if the prosecutor fails to serve any information about the prosecution case, or serves such information late, or departs from his case. There are good reasons for this, too. The prosecutor is already required to serve a notice of the prosecution case or a notice of transfer under existing statutory provisions. If he does not do so, two consequences may follow. One is that the accused is not required to make defence disclosure in Crown Court cases at all, and accordingly no inference can be drawn from that. That is the effect of Clause 5(1)(c). The second, and more likely, consequence is that the case will not be allowed to proceed. Similarly, if the prosecutor serves the information late--that is, has not done so before the appropriate time for defence disclosure--the accused is not required to give a defence statement. That is because the time limits for these procedures will link defence disclosure to the disclosure of unused material by the prosecutor rather than to the service of the prosecution case. The prosecutor will need to ensure that he complies with the other statutory requirements in relation to the service of his case in good time.

The position is a little different in relation to a departure from the prosecution case. In the light of any new information after pre-trial disclosure has taken place, understandably, the case for the prosecution may change. If there is new evidence against the accused, the prosecutor is under a separate and long-standing duty under the existing law to serve it on the accused so that he is not taken by surprise at trial. If the prosecutor failed to do so, the accused would be able to apply for an adjournment. If there is new prosecution evidence or a change in the prosecution case, the defence case may also change. But the Bill already caters for that in Clause 10(4), by requiring the court to have regard to the extent of the difference from the defence statement and the reason for it, before deciding whether to comment or draw any adverse inference. If the change is a consequence of something done by the prosecution, I think it unlikely that the court would allow such an inference to be drawn. On the other hand, if the change results simply from a desire by the accused to surprise the prosecution, and the prosecution case itself has not changed, I think it is more likely that the court would allow an inference to be drawn. For all these reasons I invite the House to reject the proposed amendments.

5.45 p.m.

Lord McIntosh of Haringey: My Lords, I am heartened by the support which has been expressed for these amendments, notably by the noble and learned Lord, Lord Ackner, the noble Viscount, Lord Runciman of Doxford, and by my noble friend Lord Williams of Mostyn. They encourage me to think that we are not quite as stupid as some people think we are.

Despite what the noble and learned Lord the Lord Advocate said, I was not claiming that these amendments would assist the accused in every case. He said that they would act without materially assisting the accused in every case. Of course they will not assist in every case, but if we are to look at this matter

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objectively we have to contrast what is required of the prosecution and what is required of the defence. What is required of the prosecution under the Bill is the indictment and the witness statements and, really, nothing else. In other words, the defence has to interpret the indictment and the witness statements and take a view as to what the prosecution case statement would be if it had been disclosed.

What is required of the defence under Clause 5 is much more detailed. Clause 5(4) states that a defence statement is a written statement,

    "setting out in general terms the nature of the accused's defence, indicating the matters on which he takes issue with the prosecution".

We must remember that as the Bill is drafted "the prosecution" only means the indictment; it does not mean a full prosecution case statement. Clause 5 further states,

    "setting out, in the case of each such matter, the reason why he takes issue with the prosecution".

My next comment may not be acceptable to the noble Viscount, Lord Runciman, but the prime argument for these amendments is that they will enable the defence to make a better statement because the defence will know what case statement is being answered, and will know--

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