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Baroness Blatch: My Lords, under Amendment No. 66 the code of practice would require a police officer to indicate on the sensitive schedule the reason that he believes particular material is sensitive. This will help the prosecutor in his assessment of whether the material needs to be brought before the court for a ruling on whether it should be disclosed. It accords with current practice. I am grateful to the noble Lord for having raised the point and we will amend the draft code accordingly.

Under Amendment No. 73 the code of practice would define sensitive material for the purposes of preparing a schedule of sensitive material. The terms of the amendment are the same as those of the existing provisions of the draft code of practice. I have no difficulty with the content of the amendment but, as I have already explained to the House, I cannot accept amendments which place the detailed content of the code of practice on the face of the Bill.

I turn now to Amendment No. 67, about which I have rather more to say. The amendment inserts a new provision into the Bill after Clause 17(2). It requires the code of practice to provide that the prosecutor must be given the schedule of sensitive material; must have access to all material listed on it; and may amend the schedule in the light of his own decision about whether it is in the public interest to disclose the material listed. The effect of the Bill, which is clearly brought out in the draft code of practice, is that the police must give the prosecutor the schedule of the sensitive material and must give him access to all material listed on it. Accordingly the first two of these requirements are already catered for.

However, I have more difficulty with the third requirement. The purpose of the sensitive schedule is to draw the attention of the prosecutor to material which it may not be in the public interest to disclose. All of the material will be sensitive; some of it may fall within the test for disclosure, some of it may not. It is for the prosecutor to assess whether the material listed on the schedule meets the tests for disclosure in the Bill, and if so whether he should apply to the court for a ruling to protect it. The test whether it is in the public interest to disclose sensitive material only applies where the material would otherwise have to be disclosed because it fell within the disclosure tests in the Bill.

The noble Lord explained in Committee that his main concern was to ensure that the prosecutor and not the police was responsible for deciding what was sensitive and what was not. Although the police will initially categorise material as either sensitive or non-sensitive for the purposes of preparing schedules, it is for the prosecutor and not the police to assess whether material--sensitive or non-sensitive--should be disclosed, and it is for the prosecutor and not the police to make an application to the court if he thinks that

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material is so sensitive that it is not in the public interest to disclose it, notwithstanding that it is of a category required to be disclosed under the provisions of the Bill.

I am concerned about the effect of the amendment in practice. It explicitly provides that the prosecutor may amend the sensitive schedule which the police have given him. Why would he want to do that? The sensitive schedule itself is not a public document. The only reason why the prosecutor would want to amend the schedule is that he intends to give the amended version to the accused. Now one of two consequences must follow from this. Either the prosecutor removes from the sensitive schedule everything except sensitive material which falls within the test for disclosure and which is not protected by the public interest test--in which case the accused will receive all material listed on the schedule, and there would be no point in giving him the schedule because there is nothing on it which he will not have seen--or the prosecutor leaves on the sensitive schedule not only sensitive material which meets the test for disclosure and which is not protected by the public interest test, but other sensitive material which is not being disclosed, either because it does not meet the test for disclosure or because it does but a court has ruled it is not in the public interest to disclose it. This would defeat the purpose of listing sensitive material on a separate schedule in the first place.

If the second scenario applies, then, as I explained when we debated this amendment in Committee, the accused would have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. This would significantly impede the fight against serious crime. As the noble Lord explained in Committee, that is not what he intends, and of course I accept that. For all of these reasons I hope again that these amendments will not be pressed.

5 p.m.

Lord McIntosh of Haringey: My Lords, I think Joseph Heller would be proud of that reply. We are in Catch-22 territory here. The responsibility of the prosecutor is to judge what elements of the schedule of material that he has been given should be given to the accused. There are two criteria that he has to take into account in making the decision on what to disclose to the accused. One is the provisions in Clause 3 as to whether it undermines the prosecution case; in other words, the entirely separate issue which we are not debating today about the criteria for disclosure. The second matter, which runs alongside the first obligation and could either add to or subtract from the material which has to be disclosed, is the question of sensitivity--of whether it is in the public interest for the matter to be disclosed.

Therefore the responsibility of the prosecutor is clear. He has to make judgments under Part I of the Bill, and under Part II of the Bill he has to decide whether material which he believes should be disclosed under Part I should in fact be withheld on the grounds that it is sensitive material. The Catch-22 matter arises because, although we have, I think, come fairly close to reaching agreement about the detail and the comprehensiveness

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of the material to be revealed to him by the investigator, he cannot know, as the Bill is at present drafted and as the code of practice is at present drafted, whether the material that he wants to disclose should or should not be classified as sensitive. All that is happening is that he is being given a schedule of non-sensitive material--he can see the material himself if he wants to--and he is being given a list of sensitive material which he is not allowed to see. Under those circumstances I suggest that it is not possible for the prosecutor to meet his obligations under Part I unless he has the schedule of sensitive material and unless he is able to make a judgment for himself.

Of course I am grateful for the assurance the Minister has given that the provisions of Amendment No. 66 will be included in the next draft of the code. Of course we are at one about Amendment No. 73. It is not our intention that it should be included in the text of the Bill. We tabled it to help noble Lords who do not wish to carry their draft code of practice around with them. As regards Amendment No. 67, we really are in disagreement and we shall have to return to this matter. I gladly give way to the noble Baroness.

Baroness Blatch: My Lords, I wish to ask a question of the noble Lord. Did I hear him aright when he said that the prosecutor does not see the sensitive material? In fact the prosecutor sees the sensitive and the non-sensitive material but he makes judgments about the sensitivity or non-sensitivity of it.

Lord McIntosh of Haringey: My Lords, in that case much of the debate that we had about the security clearance of the prosecutor is irrelevant for a reason that I had not suspected. What we are saying in Amendment No. 67--to which the Minister is objecting--is that the prosecutor must have access to the material and may amend the document; that is, the schedule of sensitive material. He is not amending the material; he is amending the document having himself reviewed whether it is in the public interest that it should not be disclosed to the accused. I am taken aback by the Minister's statement. If the prosecutor has access not only to the schedule of sensitive material but also to the material itself--which is what I think I am now being told--Amendment No. 67 is not dangerous but unnecessary. I shall have to reflect on what the Minister has said in both of her interventions. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 and 68 not moved.]

Lord McIntosh of Haringey moved Amendment No. 69:

Page 11, line 14, at end insert--
("( ) The code shall provide that a document shall be prepared under subsection (3) in every case except where the accused has indicated an intention to plead guilty or a police officer witnessed the offence and the accused has not denied the offence or indicated an intention to plead not guilty.").

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The noble Lord said: My Lords, noble Lords will be relieved to know that we are coming close to the end of the series of amendments about the code of practice. However, Amendment No. 69 is genuinely designed to be helpful. I have a feeling that we have been talking at cross purposes earlier about this matter. What we are saying here relates to the debates we had at the beginning of Thursday afternoon; in other words, about what event triggers the primary disclosure by the prosecutor, because behind the primary disclosure by the prosecutor--which, under the Bill, is triggered by a plea of not guilty--lies the obligation to produce a schedule. If there is to be no disclosure, then there is no need for revelation in the first place in the form that is provided for in the legislation. Of course revelation of material designed to support the prosecution is still as necessary as always.

In Amendment No. 69 we give four examples where a document or schedule does not need to be prepared. Those are: when the accused has indicated an intention to plead guilty; when a police officer has witnessed the offence (which is where "a fair cop, Guv" comes into it); when the accused has not denied the offence; and when he has not indicated an intention to plead not guilty. With this amendment I am trying to save work for the police and the prosecutor. I suggest that there should be wider grounds on which no schedule or disclosure, and none of the elaborate to-ing and fro-ing which is provided for in the Bill, should be required.I hope that it will be thought that the amendment is helpful rather than damaging to the Bill. I beg to move.

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