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Viscount Runciman of Doxford: My Lords, I am grateful to the noble Lord for giving way. I think I was careful in my remarks not wholeheartedly to endorse the amendments as grouped precisely because I very much recognise the force of some of the arguments which the noble and learned Lord the Lord Advocate put. I spoke at that stage because I wanted--if I remember how I worded it--to endorse and support the remarks of the noble and learned Lord, Lord Ackner, about my concern at the possibility that the Crown might try to have it both ways. I hope to hear from the noble and learned Lord the Lord Advocate at least that that concern is taken seriously by Ministers. I do not wish to dissociate myself from the remarks of the noble Lord, Lord McIntosh; I perhaps want to have it both ways by supporting the noble and learned Lord, Lord Ackner, and conceding--as I would if I were to speak at greater length, which is unnecessary--a great deal, and indeed agreeing with what the noble and learned Lord the Lord Advocate said.

Lord McIntosh of Haringey: My Lords, those comments are interesting and helpful and I am grateful to the noble Viscount for them. The point he is making is valid; namely, that my amendments--I made the point myself--go further than he would perhaps wish to go in making it possible for the defence to give a fuller statement in the defence disclosure. However, even so, and even though what I think we are doing here is evening out and improving the possibilities, there are two ways of evening things out: one is drastically to limit the amount of disclosure on both sides, and the other is to increase the amount of disclosure on both sides.

It is not possible to have the very general statement of requirements of defence disclosure and such a limited statement of prosecution disclosure. That is not in the

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interests of justice. It may result, paradoxically, in more guilty people going free. There is certainly a possibility that it would result in the prosecution changing its case subsequently on the basis of the defence disclosure, or even building its case on the basis of the defence disclosure when it has not made up its mind in advance what the case is.

The noble and learned Lord the Lord Advocate gave figures from the Crown Prosecution Service of a potential cost of £4.5 million. That sounds like a classic case of an unknowable statistic. It must be based on assumptions, which ought to be explicit and could be queried, about the number of cases in which this would occur, the number of cases in which the information provided would be substantially in excess of that which is provided now, and the number of cases in which a case statement--which has to be prepared sometime--has not been provided at the time of the defence disclosure.

Conversely, there is no reference to the savings that might result from this provision. For example, what is the likely bill for legal aid for helping the defence to make a disclosure? It is clear that defence disclosure would be more difficult if the Bill remains as drafted and the amendments are not accepted. That in turn must have a cost. Again, what is the cost of delay as a result of the defence having to invent, reconstruct or construct for the first time a prosecution case statement in order to create a defence case statement?

No, my Lords, the two are not properly matched. A defence case statement is required in response to a prosecution disclosure which does not include a case statement. That cannot be right. The wording of the amendments is not such that I wish to test the opinion of the House on them, but this is a matter of great importance and is one of the half dozen most important matters to which we shall have to return at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 15:

Page 3, line 32, leave out first ("and") and insert ("or").

The noble Baroness said: My Lords, Amendment No. 15 is a purely technical amendment. Clause 5(2)(b) refers to a notice of transfer given under Section 4 of the Criminal Justice Act 1987 in cases of serious and complex fraud. The Criminal Justice and Public Order Act 1994 amended the Criminal Justice Act 1987 so that Section 4 deals with cases of serious or complex fraud. The amendment simply ensures that the wording of Clause 5(2)(b) is consistent with that change. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 16 and 17:

Page 3, line 34, leave out ("or").
Page 3, line 39, at end insert (", or
(d) section 1(2)(c) applies and the prosecutor has served on the accused a copy of the indictment and a copy of the set of documents containing the evidence which is the basis of the charge.").

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The noble Baroness said: My Lords, the amendments were spoken to with Amendment No. 2. I beg to move the amendments en bloc.

On Question, amendments agreed to.

[Amendment No. 18 not moved.]

Baroness Mallalieu moved Amendment No. 19:

Page 3, line 40, 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: My Lords, the amendment was tabled at Committee stage. All those who spoke in relation to it, with the exception of the noble Baroness the Minister, spoke in support of it. As I recall, they spoke from various sides of the Chamber and included four noble Lords who are either legal practitioners or former practitioners and one practising member of the judiciary.

The noble Baroness undertook to read the debate and consider all that had been said. I understand that she has written to me. In the past 20 minutes I have been shown a letter addressed "Dear Ann" which is in the hands of the noble Lord, Lord Harris of Greenwich, but I fear that the original has not reached me. However, I have had an opportunity to read the letter and I understand that the Minister's position remains unchanged. I said in Committee that if the Government did not think fit to bring forward an appropriate amendment I would feel compelled to do so today. I now do so.

The purpose of the amendment is simple. I believe that it is necessary in the interests of economy, efficiency and justice. I believe that it effects a real improvement to the Bill.

Under Clause 5(3) the accused must give a defence statement to the prosecutor. 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".
"Hard rules make bad law" may be a cliche, but I suggest to the House that this is a classic illustration. In most cases it will be both necessary and possible for the defence to give a statement so that the issues can be properly clarified before trial. However, in a small number of cases it will not. Perhaps I may give the House three different illustrations.

The first is the very straightforward case of the kind to which my noble friend Lord Williams of Mostyn referred in relation to another amendment. An officer sees a man break a shop window and he believes that it was a deliberate act. There are no other witnesses. He arrests the man at once, and the man claims that it was an accident. The only statements necessary or indeed available for trial will be those of the officer and possibly one from the owner of the shop about the cost of repair. There will be no undisclosed prosecution material. The issue is whether the glass was broken by accident or whether it was a deliberate act. That will be abundantly clear to all those involved in the case. If a defence statement has to be served, no purpose will be served by it. The issues are clear. It will not prompt any further disclosure. However, it will involve further expense, almost certainly to the Legal Aid Fund. In such a case a requirement would appear to be pointless.

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I give a different example. The defendant is suffering from serious mental illness. The issue is whether he is fit to plead. That was an example given in Committee by the noble Viscount, Lord Colville of Culross. The Crown will of course be notified of the position because the matter will have to be determined as a preliminary issue. However, if the defendant is incapable of giving lucid instructions upon which a defence statement can be based, there can surely be no purpose in such a case in requiring one from him. In such a case, it must, as a matter of good sense, be open to a judge to dispense with such a statement at the appropriate stage and not to wait until the trial is under way before he is able to decide whether there should be comment about failure to give one.

The third example is quite different. It is common to find an unrepresented defendant who is illiterate or semi-illiterate, particularly in the small simple cases which will make up the vast majority of those to which this legislation will relate. Many such people come before our courts, as anyone who sits in a magistrates' court in London, for example, will well know. In some of those cases, to require the defendant to produce a statement in writing will be to ask the impossible or near impossible of him, with all the risks of misunderstanding and mistake which are, frankly, the oxygen of miscarriages of justice. Who is to explain to that man what he must do and how he must do it, and who is to assist him? In an appropriate case of that nature, surely it ought to be open to the judge at an early stage to deal with the matter by dispensing with the statement.

I understand the anxiety of the noble Baroness, to which she referred at Committee stage, and I understand mentions again in her letter that no additional stage in the disclosure process should be added by such an amendment. However, I suggest to her and those who advise her that the reality is that in such a case two stages would be removed at a stroke: first, the requirement for the defence statement; and, secondly, the secondary disclosure by the prosecution.

I believe that very few cases would be involved. Difficulties of that sort arise, but they will not be commonplace. Where they arise the matter can surely be listed before a judge by way of a simple application or indeed a mention. I believe that in many of those cases there will be agreement between both prosecution and defence that no purpose would be served by such a step.

The Bill introduces quite complex procedural rules. I believe that it is also necessary to provide a means for cutting short procedure at the appropriate stage in a case where that would be in the interests of justice. The amendment gives a judge power to do so in an appropriate case at the appropriate point. I hope that the amendment will commend itself to the House as being based on plain common sense which, if it is likely to do anything, will save money rather than incur further expenditure and will be in the best interests of economy, efficiency and justice, at the end of the day producing a decent piece of working legislation. I beg to move.

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6 p.m.

Lord Harris of Greenwich: My Lords, as a signatory to the amendment perhaps I may say a few words.

I should like to indicate my gratitude to the noble Baroness, Lady Blatch, for writing to me and to others on the point. It has been helpful. However, if I may say so, it is profoundly unhelpful to receive a letter at ten past four this afternoon, which is the position so far as I am concerned. Only by chance did I receive the noble Baroness's letter. But if one is to have letters from Ministers, it is obviously highly desirable that one should have a reasonable amount of time to consider the issues, particularly as they are fairly complex.

During the last debate, the noble Baroness, Lady Blatch, may recall that I asked three questions, one of which has been touched upon by the noble Baroness, Lady Mallalieu. First, what would be the position if the defendant were not legally represented? Who was going to draw the attention of the accused to his obligations under the statute on the production of a defence statement? Who had the obligation of informing the unrepresented defendant of his precise responsibilities?

In the letter which I received from the noble Baroness, she states:

    "We quite agree that the accused must not be put in the position of not producing a defence statement because no-one told him he had to produce one".

I am glad that the noble Baroness has made the position clear. Earlier in the same paragraph she said:

    "We are currently considering various options for doing this, such as setting out the requirements imposed by the Bill in the covering letter which the prosecution will send when it makes primary prosecution disclosure, or by way of a notice from the court when proceedings are transferred for trial. If the accused was unrepresented, the information would be served on him personally".

So far, so good, my Lords. However, as the noble Baroness, Lady Mallalieu, pointed out--indeed I pointed it out on the last occasion that we discussed the matter--a substantial proportion of people in prison are either semi-literate or illiterate. If they are held in a grossly overcrowded prison, as many are, who in that prison will have the responsibility of explaining his responsibilities to the unrepresented defendant? Who will help him draft his defence statement? Will some specific officer of a clear rank in a prison, such as assistant governor, have that responsibility? We deserve specific answers to the questions; otherwise a man's defence could be gravely prejudiced. As the noble Baroness pointed out, I am sure that there is no desire on the part of the Government to take action which would lead to that unhappy result.

I hope that the noble Baroness will accept that in prisons at present, grossly overcrowded as they are, with cuts being made in numbers of staff--uniformed, probation officers and education officers: exactly the people who might help unrepresented people to prepare some form of defence statement--it is necessary to have some clear guarantee from the Government on the action

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that they will take to ensure that the unrepresented defendant has access to advice from people who are literate and capable of giving him that advice.

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