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Lord McIntosh of Haringey: My Lords, I am grateful for that robustly worded reply. The Lord Advocate is clearly convinced that the defence will abuse the process in a significant number of cases by putting forward an inadequate disclosure on the first occasion in order to "test the water" and try it out in other ways.

I should have thought that that was an extraordinarily risky procedure for the defence. I cannot imagine circumstances in which a defence lawyer--as an outsider I look around for legal confirmation--would proceed in such a way. If I were a defence lawyer, I would be wary of putting forward an inadequate defence, in turn triggering an inadequate secondary disclosure from the prosecution, in order to change that defence afterwards. I would be well aware that I may not get an opportunity to change it afterwards and that my unwillingness to use the argument in my preliminary defence disclosure at the trial may be commented on adversely by the judge.

Therefore, I do not believe that, as a matter of practicality, it will work out in the way that the noble and learned Lord says. I recognise that he has far more experience in these matters than I do. I shall consult with those who advise me, who also have more experience than I do, to see whether he is right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Clause 9 [Continuing duty of prosecutor to disclose]:

[Amendments Nos. 26 to 35 not moved.]

Baroness Blatch moved Amendment No. 36:

Before Clause 11, insert the following new clause--

Public interest: review for summary trials

(".--(1) This section applies where this Part applies by virtue of section 1(1).
(2) At any time--
(a) after a court makes an order under section 3(6), 7(5), 8(5) or 9(8), and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned,

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the accused may apply to the court for a review of the question whether it is still not in the public interest to disclose material affected by its order.
(3) In such a case the court must review that question, and if it no longer believes that it is not in the public interest to disclose material to any extent--
(a) it shall so order, and
(b) it shall take such steps as are reasonable to inform the prosecutor of its order.
(4) Where the prosecutor is informed of an order made under subsection (3) he must act accordingly having regard to the provisions of this Part (unless he decides not to proceed with the case concerned).").

The noble Baroness said: My Lords, in moving Amendment No. 36, I shall, with permission, speak also to Amendments Nos. 37 and 39.

The amendments arise from a point made in Committee by the noble Lord, Lord Williams of Mostyn. He argued that the constitution of a bench of magistrates often changed in the course of a summary trial, and that in those circumstances it would not be possible for a magistrates' court to comply with the duty imposed by Clause 11 to keep under review a ruling on the disclosure of sensitive material. I agree with that, although (for the reasons I gave in Committee) I do not agree with the solution he proposed; that is, to transfer from the magistrates to the clerk the responsibilities arising from Clause 11. The difficult and important decision of whether it is in the public interest to disclose sensitive material should always be taken by a judge or magistrate.

I have reflected on whether it is right in principle that a magistrates' court should be under a duty to keep a disclosure ruling under continuous review. Unlike in the Crown Court, magistrates determine questions of both law and fact. If they order that sensitive material must not be disclosed, they will have to determine the guilt or innocence of the accused on the basis of the evidence adduced at trial but in the knowledge of other material of which the accused is unaware. There is a danger of bias in those circumstances.

The High Court considered this issue last year in R. v. South Worcestershire Magistrates ex parte Lilley. It held that magistrates had a discretion to disqualify themselves from hearing the case in those circumstances, and that in some cases they should disqualify themselves, even if the trial had already started. Requiring them to keep a non-disclosure ruling under review has the effect of keeping the undisclosed material in the front of their minds and reinforcing the danger of bias.

Accordingly, we have come to the view that the right course is to exempt a magistrates' court from the duty to keep non-disclosure rulings under continuous review (with which it often cannot comply anyway). That is the effect of these amendments, which confine the duty of review in Clause 11 to cases which are to be tried in the Crown Court and insert a new clause before Clause 11 for cases which are to be tried in a magistrates' court. Apart from exempting a magistrates' court from continuously keeping under review a ruling on disclosure, the provisions in summary trials for

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considering applications for disclosure are to be the same as for trials on indictment. The accused will still be able to apply to the court for a review of such a ruling; and, when he does, we envisage the clerk bringing the papers to the attention of the bench constituted to try the case at the time of the application. The detailed procedure would be governed by the rules of court to be made under Clause 12.

Amendment No. 39 expands Clause 12 to refer to the provisions of the new clause to be inserted before Clause 11. I beg to move.

Lord Williams of Mostyn: My Lords, I am grateful for the generous way in which the Minister approached this issue. It is a difficult matter because of the nature and the constitution of the magistrates' court. The Minister's response is an improvement, but I still have two problems. I put them forward in a spirit of trying to improve the situation.

First, one still has the problem of the unrepresented defendant. An unrepresented defendant will not be equipped to consider making the application or, indeed, to be able to make the application--the first step may be the most important. I know that the Minister cannot bind the Legal Aid Board, but it may be useful for the House to be given an indication--not necessarily at this precise moment--that the Government's view is that no defendant should be unrepresented in such difficult circumstances. I stress that it is the first question that is the important one; namely, how is an unrepresented defendant to know the advantages and balances before he comes to a decision in regard to an application?

The second problem, which I put forward for the Government's consideration at a later stage, is whether or not the application for review should be made to the Crown Court. I appreciate that in Amendment No. 38, tabled in my name and that of my noble friend Lord McIntosh, there is reference to the duties being laid upon a clerk or a stipendiary. I took the points made by the Minister on the last occasion in Committee and also in her letter as being points of some validity. I simply wonder whether, because the composition of the magistrates' court fluctuates and changes due to the usual difficulties we know so well, an application for review should be made to the local Crown Court. That would have a number of benefits, not least a more consistent and coherent approach to these questions.

I do not say this with any disrespect to the magistracy, for whom I have the highest regard, but these are delicate and tricky questions of law, judgment and balance. There is a serious question as to whether these decisions should always be made by the Crown Court. However, if they have to be made by the magistrates in the first instance, appeal ought to be to the Crown Court. I repeat that I am grateful for the approach adopted by the Minister on this matter.

Lord Renton: My Lords, I am glad that the noble Lord, Lord Williams, supports the amendment. In principle, I am sure that it is in the interests of justice. However, I am a little puzzled--I come to this afresh, not being present at Committee stage--as to why we must deal with the question in a purely negative way.

1 Feb 1996 : Column 1609

Indeed, subsection (3) contains a double negative. I should have thought that the matter could have been expressed in a more open way, so that the court, when dealing with it, decides whether or not it is still in the public interest.

The phrase in subsection (3), "if it no longer believes" assumes that the court had earlier taken a negative decision when the court may not have done so. The court may have left the matter open.

I may be showing my ignorance over this matter but I never came across the situation when I was last in practice and therefore I am a little mystified.

Baroness Blatch: My Lords, I have heard enough during the debate to persuade me not to press the amendment and I shall reflect on what has been said, but I add the caveat that it is without prejudice to the outcome. The noble Lord, Lord Williams of Mostyn, made two important points. I shall reflect on the negative nature of the amendments.

Lord McIntosh of Haringey: My Lords, in that event I shall not move Amendment No. 38 because my noble friend Lord Williams has referred to that matter and we could make progress more effectively in the gap before the next stage.

Amendment, by leave, withdrawn.

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

[Amendments Nos. 37 and 38 not moved.]

Clause 12 [Rules of court]:

[Amendment No. 39 not moved.]

Clause 13 [Other statutory rules as to disclosure]:

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