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Baroness Blatch: My Lords, unlike the tests in the current draft code of practice, the test in the amendment is not linked to any identifiable stage in the court process. An indication by the accused of a guilty plea can be made in several ways. It is not clear whether the investigator is to await a formal indication, for example at a mode of trial hearing, or whether he is to act on the basis of an informal indication which may later be reversed.

The amendment would require schedules to be prepared unnecessarily in relation to summary offences where a police officer correctly believes that the accused is likely to plead guilty at a summary trial but the accused has not given any indication of that in advance. Given the very large number of summary offences tried each year, that would represent a considerable additional burden for the police. Accordingly, we do not intend to incorporate the amendment into the draft code.

Lord McIntosh of Haringey: My Lords, we do not understand each other, or perhaps I do not understand the Minister. I am sure that that is my fault. I believe that the amendment would reduce the burdens on the prosecutor rather than the reverse. It provides for an exemption from production of a schedule in circumstances where there has not yet been a not guilty plea. That seems to me to be helpful rather than damaging. However, just in case I am wrong I had better beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 Feb 1996 : Column 43

Lord McIntosh of Haringey moved Amendment No. 70:

Page 11, line 14, at end insert--
("( ) The code shall provide that the person required to reveal material must give the prosecutor, at the same time as he gives him the document prepared under subsection (3), a copy of any material which falls into the following categories--
(a) information from potential witnesses containing a description of the alleged offender which does not conform to the description of the person charged with an offence;
(b) information provided by an accused person which indicates an explanation for the offence with which he has been charged;
(c) any material casting doubt on the reliability of a confession;
(d) any material casting doubt on the reliability of a witness;
(e) details of confessions or investigations which relate to another person where the enquiry has been terminated; and
(f) any other material which the investigator believes might undermine the prosecution case or assist the accused.").

The noble Lord said: My Lords, Amendment No. 70 is a revised version of Amendment No. 92 which we put forward at the Committee stage. Again, not having debated it previously, we have the benefit of an explanation from and discussion with the Minister, for which I am grateful.

One of the Minister's objections to our previous amendment was that it included provision in the list of material to be disclosed for details of the criminal convictions of witnesses. I accept entirely that either those criminal convictions would tend to undermine the prosecution case, in which they would have to be revealed in any event, or they are irrelevant, in which case the fact of their being disclosed could discourage a witness from coming forward. Therefore, we have altered our amendment to reflect that argument.

However, we believe that it is necessary to spell out rather more than at present the details of the material which ought to be included. We have spelt those out in paragraphs (a) to (f) of Amendment No. 70. Those are matters which may not be included because they may undermine the prosecution case, but they are matters which the defence may need to know for reasons which are not evident to the prosecution. They ought to be included in the revelation procedures because they may need to be included in the disclosure. It is only the defence, which has not yet been required to make a primary disclosure, which can understand the relevance of some items to the defence case and to the conduct of the trial. That may not be obvious to the prosecution because they may not have been revealed in the right way by the investigator.

Again, we have Act 2 coming before Act 1 in the drama, which makes life extremely confusing for those of us who like to think of Act 1 coming first and like to see the plot unfold in a logical way. I believe that there is a great need for the prosecutor to have at his disposal all the elements which may be relevant to the ultimate production of an effective defence disclosure. That ought to be reflected in the code of practice, and it ought to be protected in some way by the will of Parliament in the way in which Part II of the Bill defines and constrains the code of practice. I beg to move.

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5.15 p.m.

Lord Campbell of Alloway: My Lords, I have not intervened on any of the amendments and do not propose to do so on this one. That is for the simple reason that I have received copies of the correspondence between my noble friend the Minister and the noble Lord, Lord McIntosh of Haringey, relating to matters which arose after stumps were drawn in fading light and were therefore not debated on the previous occasion. I happen to agree with the substance of the correspondence and therefore have not intervened.

Baroness Blatch: My Lords, I am grateful to my noble friend for saying that he found the correspondence helpful.

The amendment specifies certain items of material which the investigator must reveal to the prosecutor. It is similar to the existing provisions of the draft code of practice. However, there are some additional requirements, about which I have already written to the noble Lord, and I shall explain to the House what those are.

The first additional requirement is that the investigator should have to provide details of confessions or investigations which relate to another person where the inquiry has been terminated. It is not clear whether the inquiry which has been terminated refers to the elimination of a person from the inquiry into the offence for which the accused stands charged or whether it refers to an inquiry into another offence altogether. In either case we do not see why the material should have to be provided unless it casts doubt on the reliability of a confession made by the accused or otherwise appears to undermine the prosecution case. In those circumstances it is already covered by the draft code. Otherwise, the requirement imposes an unnecessary burden on the investigator and provides the prosecutor with material that he does not need to see.

The second additional requirement is to reveal material to the prosecutor which the investigator believes might assist the accused. We do not think that it is right to require that. Generally, that judgment can only be made when the defence is known, and it will not be known when the investigator prepares the schedule of material. The proper time to make that assessment is after defence disclosure, not before. The amendment would operate before either primary prosecution disclosure or defence disclosure.

I hope that the noble Lord will understand that I cannot therefore accept the two additional requirements which the amendment imposes. As to the other requirements, they are already in the code and, as I have already explained to the House, I cannot accept that the detail of the amendment should feature on the face of the Bill. Nevertheless, I confirm that they are in the code.

Lord McIntosh of Haringey: My Lords, I do not want them on the face of the Bill either. I raised the matter in order to provoke debate and I am grateful to the Minister for responding as she has. Like the Government, I want the most important aspects of the code to be prescribed as far as possible by primary

5 Feb 1996 : Column 45

legislation. The extent to which the code does that is recognised and welcomed, even though not all of the suggestions we have made have found favour with the Government. However, enough of them have found favour for us to be satisfied that our labours have not been in vain. I read what the Minister wrote to me about the problem of ambiguity where the inquiry has been terminated. It seems to me clear that we are talking about a different person rather than the same inquiry, but a comma or two might be helpful.

I am insistent--I really believe--that the phrase "or assist the accused" is helpful and should be included at the primary disclosure and revelation stage. It is so easy for things to go wrong because the prosecutor has to guess what the defence disclosure may reveal. It is so easy for people who in most respects are not allowed to talk to each other but who have to follow rules of communication which inevitably are artificial to fail to achieve the degree of communication which, if the process were not adversarial, would be valuable.

The anticipation of assisting the accused is the natural complement to the provision already in the code and the Bill about undermining the prosecution case. However, it is not an issue on which the House should be required to make a judgment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 73 not moved.]

Clause 18 [Operation and revision of code]:

Baroness Blatch moved Amendment No. 74:

Page 12, line 1, leave out from beginning to second ("he") in line 2 and insert--
("(1) When the Secretary of State has prepared a code under section 16--
(a) he shall publish it in the form of a draft,
(b) he shall consider any representations made to him about the draft, and
(c) he may modify the draft accordingly.
(1A) When the Secretary of State has acted under subsection (1) he shall lay the code before each House of Parliament, and when he has done so").

The noble Baroness said: My Lords, in speaking to government Amendment No. 74 to Clause 18, I shall, with permission, speak also to government Amendment No. 119 to Clause 53. If noble Lords opposite would think it helpful, I can refer to Opposition Amendments Nos. 75 to 77.

The government amendments require the Secretary of State to publish a draft code of practice and to consider representations made to him about it, after which he may modify the draft accordingly. He must then lay the code before Parliament. He may then bring it into operation by order made by statutory instrument, but only when the order has been approved by a resolution of each House of Parliament.

This gives effect to the recommendations of the Delegated Powers Scrutiny Committee. It is the result of reflection on its report and the debate on this issue in Committee. I understand that the scrutiny committee is content with the amendments that we have tabled.

5 Feb 1996 : Column 46

I should point out for completeness that the amendments bring the procedure for implementing this code of practice into line with the existing procedures for implementing the codes of practice made under Section 67 of the Police and Criminal Evidence Act 1984. I beg to move Amendment No. 74.

The amendments tabled by the noble Lord opposite are designed to achieve broadly the same purpose as the government amendments--that is, to make the code subject to statutory consultation and the affirmative resolution procedure. But they are technically not quite right. Amendment No. 77 to Clause 18 provides for the Secretary of State to consult interested parties about the code, but it does not provide for him to modify the code in the light of their comments.

Amendment No. 76 to Clause 18 deletes subsection (2). That currently provides for the code of practice to apply in relation to criminal investigations beginning on or after the day appointed for the code to come into operation. The effect of the amendment is to leave the courts, police and prosecutors with no guidance on the circumstances in which the code is to apply when it is first implemented. For example, it would not be clear whether the code was to apply if the offence was committed after the appointed day; or if the offence was committed before the appointed day and a criminal investigation began after the appointed day; or if the offence was committed and a criminal investigation began before the appointed day, but criminal proceedings were instituted after the appointed day.

We have linked the commencement provision in subsection (2) to cases where the criminal investigation begins on or after the appointed day, because the code is concerned with criminal investigations by the police. If an investigation begins before the appointed day, it will be in accordance with the existing practice of the police. If it begins on or after the appointed day, it will be in accordance with the new code of practice.

In the light of this explanation I hope that the noble Lord will feel that he does not need to press his amendments but will accept the government amendment.

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