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Baroness Blatch moved Amendment No. 56:

Page 10, line 26, after ("out") insert ("by a person (whether or not a police officer)").

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

4.30 p.m.

Lord Williams of Mostyn moved Amendment No. 58:

Page 10, line 28, at end insert--
("( ) that if a police officer knows or believes that other investigating agencies are or may be in possession of material that is or may be relevant to the investigation, he shall notify both the agency concerned and the prosecutor.").

The noble Lord said: My Lords, again, this is an approach similar to that adopted earlier. It deals with the situation, which is not uncommon in serious criminal investigations, where a police officer in one investigation may be in the position of sharing, pooling or exchanging information with another investigating agency. I have mentioned possible agencies. There may be further ones, not least security services if legislative action is taken, as seems likely.

If the Minister says that it is better for this to be considered as part of the code, I shall entirely accept that. This is a situation where information may be obtained in a police investigation, and a different investigating agency or authority is in possession of material which may well be relevant to the defence of a an accused person or a potentially accused person. The only obligation here is--it is a limited one--to notify that other investigating agency and the prosecutor. There is no present obligation in the draft code to notify a prospective defendant. This again is put forward on the basis of wanting to make the code work in practice. There will not be many occasions when this will happen, but there will be some, and those some may be significant. I beg to move.

Baroness Blatch: My Lords, this is a more limited version of an amendment which noble Lords tabled in Committee. I have again already written to explain why we could not make provision in the draft code of practice for that amendment. It would have required the police to conduct speculative inquiries and would have given the courts a new role in directing the investigation of offences. I think that the noble Lord has accepted that in bringing forward a revised amendment for the current code of practice.

In the current draft of the code of practice, if a police officer knows that another investigating agency is in possession of material that may be relevant to the investigation, he is required to notify the agency concerned and the prosecutor. But he is not required to make speculative inquiries of other agencies to establish whether they may have any material that may be relevant.

The amendment would require the police officer to notify the agency and prosecutor if he believed that the agency might be in possession of material that might be relevant. In its more limited form, I think that may be acceptable in principle as an amendment to the draft

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code, as long as it is recognised that a police officer is under no obligation to make speculative inquiries. In other words, there must be some foundation for his belief that the other agency may be in possession of relevant material, but the noble Lord has already made that point. With that response, I hope that the noble Lord will not press the amendment.

Lord Williams of Mostyn: My Lords, I am grateful again for that reply. It was not the intention of the amendment to put the burden on any police officer or investigating agency to make speculative inquiries. It is merely that if there is knowledge or sensible, reasonable belief that there is relevant material, that would be notified to the other agency--the third party agency, as it were--and the prosecutor. I am grateful to the Minister for her helpful response. Upon that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Lord McIntosh of Haringey moved Amendment No. 60:

Page 10, line 30, at end insert ("including provision that it is recorded in sufficient detail to enable the prosecutor and the accused (if the record were subsequently to be disclosed to him) to form a judgement as to its relevance").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 61. These are further examples of amendments that we tabled in Committee and did not move because of the state of play between the two Front Benches at that time, but which have been the subject of correspondence and a meeting between Ministers and ourselves since that time.

As the Minister will recognise, we have amended the amendments to reflect those parts of the Government's answers which we considered to have validity. We are grateful for that. In particular, our earlier amendments referred to specified information enabling the accused as well as the prosecutor to form a view as to its relevance. We recognise that if the material is sensitive, it will be recorded on a sensitive schedule and the accused will not have access to it. Therefore, it would have been improper to include the wording that we then included.

However, the issue behind the amendments is still the same. The wording used in the legislation to describe what is called in the Royal Commission report, and has been called by Ministers in correspondence,

    "The schedule of material to be disclosed to the accused",
is not described in that way in the legislation. Normally, the wording used is "a document". A document is not the same thing, to me at any rate, as a schedule of material which is necessary in order to comply with what I understand to be the intention of the legislation.

We are again in danger of theological points, or perhaps semantic points, about the meaning of different words and phrases and the way in which they are put together. Nevertheless, it is important to have enough detail in the primary disclosure by the prosecution. The criterion by which the amount of material to be

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disclosed to the accused at the primary disclosure stage should not be merely administrative convenience and the workload on the prosecution.

Of course the workload and the burden must be taken into account, but the purpose of the primary disclosure by the prosecution and therefore the revelation by the investigator to the prosecution is what information will be necessary to trigger the compulsory defence disclosure which is provided for in Part I.

I still believe that it is desirable to have greater precision about what is provided in order to balance the administrative convenience and the burden of work on the investigator and the prosecutor with the interests of justice which require that the defence should have adequate information upon which to present its own disclosure and therefore contribute to a fair trial. I beg to move.

Baroness Blatch: My Lords, I have had the advantage of correspondence and discussion with the noble Lord about these amendments, in the course of which I explained to him that the main function of the schedule is to notify the prosecutor of material retained by the investigator, material which does not form part of the case against the accused and which the prosecutor will not previously have seen, so that the prosecutor can make informed decisions on disclosure. The schedule has to be sufficiently detailed for the prosecutor to do this. The amendment would not, in my view, add anything of practical value.

The second amendment requires the source, date and nature of the material to be specified on the schedule. It is not clear--at least not to me--why these specific details are required to be recorded given that the schedule must already provide sufficient detail for the prosecutor to form a view on whether any item on it needs to be disclosed. Not only is it not necessary to record information in the way specified in all cases, it would place an unjustifiable burden on the investigator to require him to do so. For example, in most cases the source of the item will be the investigator, who has generated interview records or other material.

The amendment would also require the schedule to list the names and addresses of witnesses to the offence who were known to the prosecutor and from whom witness statements had not been taken. But the function of the schedule is to list material which does exist, and I do not see why it should extend to material which does not exist.

There is another consideration which I should mention. Disclosure of the names and addresses of witnesses before the trial is not required under the law at present. I do not think it would be desirable to disclose such information. The prosecutor will know about such witnesses only if they have come forward to the police. Many witnesses come forward on the basis that their anonymity will be protected because they fear reprisals from the accused or his friends. This amendment would remove that protection. Witnesses of crimes would be more reluctant to report them. That would not be in the interests of justice. It would also treat them unfavourably in comparison with witnesses who have given witness statements and who are to give

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evidence at trial--the judge has a discretion to allow them to hand in their addresses to the court in writing rather than to read them out. As I have explained in previous debates, I cannot, for those reasons, accept these as amendments to the Bill.

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