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Lord Goldsmith: I shall speak to Amendments Nos. 106, 110 and 111. Amendments Nos. 106 and 111 relate to procedure for the cross-service of initial and
updated defence statements respectively. Clause 32(1) seeks to fill a gap in the disclosure procedure drawn to the Government's attention by the Criminal Bar Association, namely, whether it was possible for the court to order the cross-service of defence statements. Since this Bill was introduced, on 22nd November 2002 the Court of Appeal, in the case of Regina v Cairns and Others, held that the court could indeed order cross-service. This clause still provides useful statutory backing to the Court of Appeal's decision. There is no objection in principle to cross-service. We are dealing here solely with the procedure to be followed. As the amendments are drafted, they would require the service of the co-defendants' statements on the prosecutor and their cross-service all to take place simultaneously. I do not think this is practical or, in many cases, desirable.Subsections (1) and (3) of the clause make it clear that the power to order cross-service of initial and updated defence statements to co-accused is one for the discretion of the judge, either of his own motion or on application by any party. Subsection (1)(5D) also deals with the time when the statement should be served.
In the exercise of its discretion, the court would need to determine whether the defence statement in a case should be submitted simultaneously or whether there should be some different order as to time. If no statement were served until it had been proved to the satisfaction of all the defence teams that service would be simultaneous, that could delay and complicate the trial. For example, the illness of a single defendant could delay disclosure. Moreover, a delay in the prosecution's receipt of the initial defence statement would delay further prosecution disclosure to the disadvantage of defendants. That would not be acceptable. I understand the motivation underlying the amendments, as debated in Committee in another place, that one co-accused should not be able to derive an advantage from delaying his own statement until he has seen the line to be taken by the other defendants at the trial. However, we can safely rely upon the discretion of the judge in ordering cross-service to take account of this consideration.
Amendment No. 110 seeks to remove the power which subsection (4) of the new Section 6A of the Criminal Procedure and Investigations Act 1996 confers on the Secretary of State to make regulations on the details of matters to be included in the defence statement. Clause 32 as a whole addresses well-founded concerns which have been expressed and confirmed by research, as to the inadequacy of many defence statements. The changes it makes to the defence statement procedure are intended to remedy a problem of non-compliance which arises to some extent out of the fact that the present defence statement requirements are too vague. We hope that the changes introduced by new Section 6A will have the desired effect in improving the quality of defence statements. But the regulation-making power will enable further more specific and detailed guidance on their contents to be issued if it proves necessary. It will enable us to respond more quickly and flexibly to any
need for further guidance which may arise than is possible with primary legislation. The regulation-making power enables the Secretary of State to add detail to—or vary the detail of—matters which are to be included in defence statements. Those matters are identified in the primary legislation.I turn now to the question that the noble Baroness put to me about the provisions of a form of resolution. The amendment on Report in another place was a technical one. It put the provision in the correct place in the Criminal Procedures and Investigations Act 1996. It was moved from the new Section 6A to Section 77 of the CPIA which deals with parliamentary procedures for all secondary legislation under the CPIA. I can confirm that it is still the affirmative procedure and does satisfy the undertaking which was given in Committee, as the noble Baroness knew it would. I hope for those reasons it is clear why I cannot accept these amendments.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. He confirmed that the life history of Amendment No. 110 as I described it was accurate. We can all rest assured. With regard to Amendments Nos. 106 and 111, I appreciate that there are practical difficulties. Like the noble and learned Lord, I am prepared to leave it to the judge to resolve those matters of cross-service. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 107 and 108 not moved.]
[Amendment No. 109 had been withdrawn from the Marshalled List.]
[Amendments Nos. 109A to 111 not moved.]
7 p.m.
On Question, Whether Clause 32 shall stand part of the Bill?
Lord Ackner: Clause 32 links with Clause 33—the next item that we shall come to—and I have company in my attempt to persuade the Committee that Clause 33 should not stand part of the Bill. I base my approach to this matter essentially on what is in the memorandum filed in the Library of the House by the noble and learned Lord the Lord Chief Justice following the debate on the legislation. The relevant part reads as follows:
- "We understand the motivation behind the provisions in the [Criminal Justice Bill]. It is to redress what is perceived as an imbalance between the obligations of the defence and the prosecution. But the judiciary are concerned that the balance is being pushed too far the other way—for example, the notification requirements on the defence will be more rigorous than those on the prosecution. Sanctions are included in relation to non-compliance with the defence obligations without any equivalent sanctions being referred to in relation to the prosecution. These distinctions are likely to interfere with the spirit of co-operation which is required to exist between the prosecution and the defence when conducting this important part of the pre-trial process".
It then goes on to deal with the issue of experts, but that is the subject matter of the next clause. Basically, those are my reasons for lumping together Clause 32 and Clause 33, which we have not yet reached.
Baroness Kennedy of The Shaws: I join the noble and learned Lord, Lord Ackner, in expressing concern about this requirement on disclosure for the defence. In principle, the defence should disclose the areas of evidence which it will contest. The argument for introducing those changes, which took place some years ago, was to prevent an ambush of the prosecution by providing a defence which the prosecution could not then investigate in any way.
The new defence statement works very effectively in laying out the parameters of the defence. Because the present arrangements have worked rather well, I want to understand fully what is being sought here and what the Government feel is not happening. I am concerned that, by now expecting far more detail than ever before, the police will be burdened with an incredible bureaucracy. They will be expected to pursue witnesses and to investigate whether the detail given by the defence will be useful to the Crown.
We are seeing, first, an erosion of the presumption of innocence and, secondly, an erosion of the burden of proof, which rests with the Crown. That is quite an alarming change. I believe that the defence should outline the position, but I express concern about this provision. I know that that concern is shared by my noble friend Lady Mallalieu, who, unfortunately, was unable to stay for the debate on this clause. Our concern arises following many years of experience in the criminal courts. The opposition to the Question whether Clause 32 shall stand part sits alongside opposition to Clause 33 because the two go together.
Why is there an expectation that more should be disclosed and passed to the Crown? As well as being contrary to the burden of proof, one introduces into the need for co-operation on both sides a concern that, by giving out information on witnesses whom it is intended to call but who ultimately might not be called, witness intimidation will occur. That was always a concern. The intimidation need not be direct; sometimes it may result from what the witnesses themselves feel.
We had the terrible experience in some major miscarriages of justice of witnesses being seen by the police and then disappearing into the ether because they were frightened of being prosecuted themselves. I acted in the Guildford Four appeal. Carole Richardson was one of those convicted and she spent many years in prison. A witness could have shown that she was with him when the explosion took place—or certainly that she was with him within the parameter of time which could not have allowed for her participation. Yet that witness did not come forward. He had felt so threatened by the police that he did not make himself available and, of course, those acting for the Crown did not let anyone know that they had seen him.
Therefore, real concerns arise about this provision interfering with the system of justice. I believe there is concern among practitioners that not only does it provide scope for the intimidation of witnesses but, as the judiciary have indicated, that it is a balancing that goes too far. I should like the Minister, who I know does not have experience of practising in the criminal court, to explain why the provision is necessary. The dynamic of a trial is that it changes all the time. Sometimes one decides not to call witnesses and sometimes one decides that one does want to call witnesses. Why should a person be expected to make that disclosure beforehand? To what end is that intended?
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