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Lord McIntosh of Haringey moved Amendment No. 4:

Page 3, line 33, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

The noble Lord said: My Lords, in moving Amendment No. 4 I wish to speak also to Amendment No. 5. This, again, is an issue on which we have sought to persuade the Government, rather than outvote the Government--fat chance of that!--that they are making a mistake in the terms of their own intention in devising this Bill. In serious fraud cases the defence is given, in return for the disclosure which is required from it, a clear statement of the Crown case in proper form before anything is demanded of the defence. In this Bill the situation is far from clear. One has to read across from Part I of the Bill to Part II of the Bill, and to the terms of the code of practice which are not included in the Bill.

It is possible that the prosecution could serve on the defence only material which meets the narrow definition--I insist that it is a narrow definition--of undermining the prosecution's case. It is possible that the schedule of material which is to be handed over will not be explicit enough and detailed enough for the defence to be able to identify the items in the schedule, or identify--this is more important--the importance of the items in the schedule. It is only too possible that the defence, with the best will in the world, may be unable to make a proper defence disclosure unless the prosecution has made a proper case statement in the first place.

I believe that the requirement for a case statement was supported by the Royal Commission. I believe that it is in accordance with the various judgments which have taken place since then that there should be a proper case statement; and I believe that it accords with the structure of the Bill--which is admittedly somewhat elaborate and clumsy, involving toing and froing--which will only be made to work if there is a proper case statement in the first place.

The arguments for having a case statement should not arouse the kind of antagonism which they have aroused in the past. Inevitably, if the prosecution is in a position to require a defence disclosure and therefore to make its primary disclosure, it will have made serious progress towards a case statement. The only difference here is not that the case statement should be prepared but that it should be disclosed before the disclosure process starts. I cannot see how it can possibly be argued that that will result in a longer or more difficult process of disclosure, any delay to the trial or any further burden on the prosecution. We say not that the prosecution should have to do more but that it should have to act earlier in the process and openly. I am convinced that that is in the interests of justice. I beg to move.

4 p.m.

Lord Renton: My Lords, if the words of Amendment No. 5 are to be included in the Bill Clause 5 is not the place to put them. I invite the attention of noble Lords

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to the fact that primary disclosure by the prosecution is covered by Clause 3. Clause 4 relates to "Primary disclosure: further provisions", and Clause 5 deals with "Compulsory disclosure by accused". That clause elaborates on the obligations of the prosecution in Clause 3. I find it very strange that Amendment No. 5 should be tacked on as an afterthought when we are dealing with compulsory disclosure by the accused.

In any event, the amendment requires careful consideration. The matters which the prosecution has to deal with under subsection (2B) (d) include,

    "any proposition of law on which the prosecution proposes to rely".
That is fair enough, but when that has been stated in other legislation an exception has been made for any reply which the prosecution makes to a point of law raised by the defence. I believe that the proposal needs qualification of that kind.

Paragraph (e) of the amendment refers to:

    "the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d)".
The only consequence can be the prosecution's intention to aim at a conviction. I do not see the point of having paragraph (e) at all.

However, as I said, I believe that the amendment is flawed by being in the wrong place in the Bill, whatever its merits.

Lord Boyd-Carpenter: My Lords, I should like to support my noble friend Lord Renton in relation to his point concerning paragraph (e) of Amendment No. 5. The words,

    "the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d)"
seem to me to put forward a most extraordinary proposition. I do not know whether it is intended to be an argument at considerable length in favour of the proposition that the accused is guilty or whether it should be simply an analysis of the possible effects of paragraphs (a) to (d). I believe that it would cause a great deal of difficulty and misunderstanding. As at present advised, I should certainly be against including it in the Bill.

Lord Ackner: My Lords, as I have in the past, I support the principle that if one expects the defence to provide more than a mere label to its defence such as "mistake", "provocation" or whatever it may be, and to provide the material which the Bill obliges it to provide, then the Government are ill-advised not to provide the defence with a clear statement of the prosecution case. It is just like civil litigation: unless there is a detailed statement of claim one cannot expect to require the defendant to put in a detailed defence.

The amendment is in error in that it goes too far. One does not want to make this situation analogous to the complex types of case for which there are special provisions. One wants to be stated what is set out in subsection (2B) (a); namely,

    "the principal facts of the case for the prosecution",

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so that a story is told which the defence has to deal with. The defence should be entitled to know any inferences which the prosecution seeks to draw from those facts. That is all. That should impose on the prosecution a very light burden. The prosecution must know what its case is; it has been the subject matter of some report before the prosecution was launched. It must therefore be in a position to tell the story to the accused so that he may put in his answer.

I hope that the Government, perhaps at a later stage in another place, will consider the wisdom, which will redound to the advantage of the prosecution, of providing the defence with a detailed account of what the defence has to meet so as to be able to see how the defence proposes so to do.

Viscount Runciman of Doxford: My Lords, not for the first time in discussions in this House on this Bill, I should like heartily to support the remarks of the noble and learned Lord, Lord Ackner, which, I am pleased to say, I arrived just in time to hear. I echo his hope that the matter may be considered further by the Government in another place.

Lord Mackay of Drumadoon: My Lords, in rising to oppose the amendment I shall deal first with the contributions made by my noble friends Lord Renton and Lord Boyd-Carpenter. They serve to illustrate the point that I sought to make on the previous occasion that the proposal is nothing like as straightforward or lacking in consequences in terms of the burden that it would place on the prosecution as those who support it suggest.

I have carefully considered the issue since the matter was last before your Lordships, not least because of my own experience of prosecution, which does not require giving notice to the accused in advance of the case in anything like the detail and volume of information which applies in this jurisdiction. I am in a position to assure the House that the matter has been considered carefully, not only by those who advise me but also by myself. Having said that, I remain of the view that it is unnecessary to proceed with the amendment in the limited form which may appeal to those who contributed to the debate.

It is important to bear in mind what is done when a case is transferred to the Crown Court for trial. As noble Lords know, the prosecutor is required to serve a great deal of specified information about a case, including a set of documents containing the evidence on which the charges are framed. In two special kinds of case (serious or complex fraud, and certain cases involving violent or sexual offences), the information will be a copy of the documents containing the evidence to which a notice of transfer has been given.

It cannot be denied that that information provides a full account of the evidential material on which the prosecution intends to rely. I venture to suggest that, when that information is read, the story which the noble and learned Lord, Lord Ackner, wishes to have told is there to be read. A person who is charged with the defence of a man and provided with all that evidential material would not look at the summary of the story as set out in the prosecution case statement under the terms

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of subsection (2)(a), (b) or (c). He would look at all the available case papers before seeking to explain the accused's position under the later parts of Clause 5.

Some information was placed before your Lordships' House at an earlier stage as to the likely consequences for the Crown Prosecution Service were an amendment to be accepted. As I recollect, the figure mentioned was some £4.5 million per annum. Further information has been considered as regards how that sum was estimated. In the last full year available, the costs were calculated in relation to the number of defendants who had been sent to the Crown Court for trial. I am in a position to assure noble Lords that considerable sums of money would be involved. However, more importantly, it would involve the prosecutors preparing a document at a comparatively early stage in the case when, on one view, their efforts would be better geared to discharging the responsibilities with regard to disclosure.

The more one considers the provisions of the amendment relating to propositions of law or consequences, the more premature it seems for the prosecutor to be setting out at that stage what his position will be once the case is ready to go for trial.

I assure the House that the matter has been given consideration. However, having regard to the fact that material benefit would be gained in few cases, and bearing in mind the other procedures available for dealing with complex cases where greater consideration is appropriate, I invite the noble Lord not to press the amendment.

4.15 p.m.

Lord McIntosh of Haringey: My Lords, first, let me address the point made by the noble Lord, Lord Renton, about where such an amendment should be placed. He suggests that it should be in Clause 3 rather than Clause 5. I remind the noble Lord that, although Clause 3 is headed Primary disclosure by prosecutor, it is entirely devoted to the definition of material which should be disclosed. The provision applies to all cases, whether before magistrates' courts or Crown Courts. On the other hand, Clause 5 relates only to cases before the Crown Court, and not the vast majority of cases which come before the magistrates' courts only. Subsection (1) contains the preconditions for compulsory disclosure by the accused.

In this amendment we do not say that there should be a change in the evidential material but that there should be a change in the words produced by the prosecutor himself before the trigger of the compulsory disclosure by the accused. Therefore I believe that this is the right place for the amendment. It is right that the provision should apply only in Crown Court cases. It is right that the case statement should not be confused with external evidential material with which the previous clause is concerned.

Noble Lords criticised the wording of Amendment No. 5. I suppose that means that they have not read far enough into the Bill to see that the wording we have used is taken directly, and without amendment, from subsection (5) of Clause 24. I do not wish to misrepresent the thoughts of the noble and learned Lord

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the Lord Advocate on Clause 24. However, he argued that the production of a case statement was inappropriate until the case was completely ready to go for trial. But Clause 24 applies to a preparatory hearing. Subsection (5) refers to the matters which, before a preparatory hearing, the judge may order the prosecutor to produce. Therefore the prosecutor has to prepare exactly that sort of case statement, in exactly the wording that I use in the amendment, before or at the preparatory hearing. Therefore the argument about the time when the case statement has to be prepared does not seem to me to have any real validity.

It is possible to make a balance in one of two ways. One was the way adopted by the Royal Commission, which said that the demands of primary disclosure by the prosecution should be reasonably limited. However, it also said that the defence disclosure should be very much more limited than is proposed in the Bill. The Royal Commission proposes, if you like, the low level of equilibrium. However, the Bill proposes a very much more detailed defence disclosure.

These amendments provide that, if the defence disclosure is to be as detailed as is stated in Clause 5, then the primary disclosure by the prosecution has to be that much more explicit for two reasons: first, at that high level of equilibrium the balance has to be maintained; and, secondly--and more practically--unless there is a defence statement in advance, the quality of the defence disclosure demanded by Clause 5 will be that much poorer and the process will not work.

The Government have chosen one way of addressing the problem. It was not the way chosen by the Royal Commission, but it could have been made to work if there had been equality between prosecution and defence. The Government have chosen not to provide equal opportunity between prosecution and defence. I predict that, unless it is altered at a later stage, the effect of this part of the Bill will be to encourage miscarriages of justice.

I have exactly the same desire to avoid miscarriages of justice and to convict the guilty as do the Government. Our intention is exactly the same. But we do not believe that the Government have the balance right. Again, because we are now on Third Reading and for no other reason--not at all because I am convinced of the quality of the arguments against the amendment--I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

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