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Lord McIntosh of Haringey: My Lords, I accept that those are arguments--in particular the argument about the names and addresses of witnesses--which have some force and which in themselves persuade me not to press the amendment to a Division.

But we are still some way from reaching agreement about the extent to which there should be an obligation on the investigator to provide enough material to enable the prosecutor to make a good judgment about what should be disclosed to the accused.

Again, I suppose that we are stuck with the peculiar structure of this Bill. Here we have Part I of the Bill which describes the second act of the play--the process between a plea of not guilty and coming up to trial--whereas Part II describes an outline of Act 1 of the play. In a well-made play, Act 3 would be the trial itself. But Act 1 of the play is defined only in terms of the content of a code of practice, and the code of practice is not sufficiently precise and comprehensive to secure that the plot as laid down in Act 2, which is what people are mostly concerned with when they are looking at the implementation of the recommendations of the Runicman Royal Commission, unfolds clearly and that the rationale behind it is clear to the audience.

Here were are trying to secure that the structure of Act 1, the structure of the code of practice, is as clear as it is for Act 2. We recognise that it must be flexible and that there are burdens on the investigators and the prosecutor which should be minimised. But I am still not persuaded that the amendments which I have tabled do not contribute positively to the effective conduct of the disclosure process contained in Act 2 or Part I of the Bill. Nevertheless, it is not an issue on which I wish to seek the opinion of the House, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

4.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 62:

Page 10, line 31, leave out from ("code") to end of line 36 and insert ("shall include provision that all relevant material shall be retained for a prescribed period, such period--
(a) to be the same period for every police force area, although the period may differ for different categories of material and for different categories of case (including the plea entered and the length of sentence); and
(b) in any case where a criminal investigation results in a person being charged with an offence, to be at least until the period for any appeal has expired.").

The noble Lord said: My Lords, this is rather a different matter. The intention of Amendment No. 62 is to secure that the policies regarding retention of material are the same in all police forces in the country. That is a matter of very fundamental importance and it is an

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issue which the Government have fudged. I do not know the extent to which they are in negotiation with police authorities and chief police officers or how close are those negotiations to reaching an end. But to have a provision, as we do in the code of practice, which says that chief officers of police shall reproduce codes which will lay down the length of time over which material shall be retained is frankly dodging the issue. It is the responsibility of government, by agreement if possible and by diktat if necessary, to make sure that all police forces have the same policies.

The issue was somewhat muddied in Committee by our failure to recognise in the amendment which we then tabled that not all material but only relevant material has to be retained. Similarly it was muddied by our failure to make it clear than the relevant period could be different for different categories of case; in other words, for different kinds of offences and for different lengths of sentence. But now we have dealt with those problems.

Our amendment now recognises the genuine differences which would have to be taken into account in any code which is to apply to all police authorities. Our case is strengthened by having a common series of rules applying to all police forces. After all, it is not just within the scope of this Bill that we are concerned with a rational structure of retention of material. The Criminal Cases Review Authority, established last year, must have some basis on which to act which is the same for, for example, Thames Valley Police as for the Metropolitan Police or the West Mercia Police. It must be sure that there are no differences in the material available to it according to the whim of the chief constable or police authority.

As the House knows, I am not one of those who seek to extend the authority of the Home Secretary over the operations of the police force. Indeed, last year I spent a great deal of time arguing for the independence of police forces; but surely not on an issue such as this. The policy as regards the retention of material which may be required as evidence in criminal cases should be the same all over the country. It is incomprehensible to me that the Government should come forward with this legislation before they have resolved that simple negotiating issue. This amendment is of considerable importance in itself. The failure of the Government to reach a satisfactory conclusion and present it to the House is a serious criticism of their ability to get the legislation through in the form that they wish. I beg to move.

Baroness Blatch: My Lords, the noble Lord is quite right to raise the matter of a national retention period. As I have already indicated to him, that idea is attractive. Indeed, my officials will meet representatives of the Association of Chief Police Officers to discuss whether a national policy can be developed. But achieving that is not straightforward. First, each police force currently operates its own policy, retaining material for different periods and applying different criteria, and there is no common practice. Whatever policy is selected will require some forces to keep material for longer than at present and others possibly

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for shorter. Secondly, it is not clear how long the periods should be in particular circumstances. Obviously, the longer material is retained the more likely it is to be available if a conviction is challenged long after it happened. But retaining all material for a very long period would impose unmanageable burdens. It is necessary to distinguish between those cases where material does need to be kept for a long time and those where it may be disposed of relatively quickly.

The amendment does indeed provide for different retention periods for different categories of material and different categories of case. But I am not sure that even this is quite as flexible as it needs to be. For example, it does not allow the disposal of material when a decision is taken not to bring charges.

Certainly, where a person has been charged and convicted it must be right to retain material at least until the time limit for an appeal has expired. On that, I can give the House an undertaking, as I have given to the noble Lord, that we will amend the draft code accordingly.

I hope that the House will be reassured to know that we are trying to develop a national policy for the retention of material by the police and that we hope to incorporate that into the draft code of practice before it is submitted for approval under the affirmative resolution procedure. We agree in principle; the debate is about how we get there.

Lord McIntosh of Haringey: My Lords, we must be grateful for the assurance as regards keeping material until an appeal has been heard and determined. Frankly, the rest of the argument is anarchy and it does not hold up at all. Perhaps we may take the example of the serial child killer, Black, who came from Scotland and killed children in different parts of the north of England and in the Borders region of Scotland. I believe that I am free to talk about the case because there is no question of an appeal. The evidence in the case comes from at least three different police forces, all of which are allowed to have their different rules about the retention of material. That makes no sense and the sooner the Government get their act together the better.

I shall not press the amendment in perhaps the vain hope that before Third Reading the Government will have reached agreement with the Association of Chief Police Officers. Let us hope for that and table the amendment again on Third Reading to see where we get. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Clause 17 [Examples of disclosure provisions]:

[Amendments Nos. 64 and 65 not moved.]

Lord McIntosh of Haringey moved Amendment No. 66:

Page 11, line 8, at end insert ("including the reason for his belief").

The noble Lord said: My Lords, Amendments Nos. 66, 67 and 73 relate to sensitive material. For the sake of the record, and in order to make it clear to noble Lords what is meant by sensitive material, we have

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included in the Marshalled List, as we did in Committee, the text of the draft code of practice. I refer to Amendment No. 73. The noble Lord, Lord Campbell of Alloway, who I am sorry is not in his place, found difficulty in believing that sensitive material is so widely drawn as to include material given in confidence. If your Lordships look at items (a) to (p) in Amendment No. 73 they will see that the definition of sensitive material is extremely widely drawn. In that amendment we have not sought to restrict the definition to those items or to insist that all of them should be included because, following the example of vagueness set by the Government in Clause 17 as a whole, we have allowed that the items may be included depending on the circumstances. We are not seeking to prescribe what should be included in sensitive material.

The important amendments are Nos. 66 and 67. Amendment No. 66, line 8 on page 11, provides that if the person required to reveal the material, that is the investigator:

    "has possession of material which he believes is sensitive he must give a document which ... indicates the nature of that material, and ... states that he so believes",
and, we suggest, includes the reason for his belief.

Amendment No. 67 goes further by suggesting that the prosecutor has the responsibility for reviewing:

    "whether or not it is in the public interest that it should not be disclosed to the accused".
In other words, it is defined as being sensitive. In order to do so he must have access to the sensitive material and he must have the opinion of the investigator, as provided in Amendment No. 66, as to his belief that the material is sensitive and the reasons for the belief. Without that he could hardly make a sensible judgment.

In Committee there was a certain amount of to-ing and fro-ing about security clearance. We can pass over that and take it that if there is ever to be a question of sensitive material which is concerned with national security or the intelligence and security agencies the Crown Prosecution Service will in any event ensure that the prosector is cleared for dealing with such matters. If the nature of sensitivity is confidentiality or non-security matters, security clearance is not relevant.

The fundamental principle behind the amendments still stands. Our criminal justice system requires that there should not be the possibility of enormous amounts of evidence, perhaps critical evidence, being excluded on the say so of the investigator and there being no opportunity whatever for the prosecutor to make a simple judgment; a sound judgment on whether the classification of the material as being sensitive is justified or not. Without that judgment, and without the prosecutor having the responsibility for reviewing the sensitivity decision, the prosecutor cannot make a sensible decision about what to disclose to the accused under the procedures in Part I.

We have revised the amendments that were tabled in Committee to reflect the sensible criticisms which the Minister made of them in correspondence. I hope that

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she will recognise that what is left is a significant improvement to the provisions of the Bill. I beg to move.

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