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Lord Goldsmith: I am grateful to my noble friend Lady Mallalieu. I will come to the guidance in a moment because, as I hope the Committee will agree, it gives a substantial degree of protection about the real point of the clause—the circumstances in which such an interview would take place.
The clause would deter the calling of surprise witnesses and help avoid adjournments and the concomitant delay to which that gives rise. It would help weed out inadequate, incomplete, or false defences. It would enable the police, without making any interviews, to check the criminal records of defence witnesses so that the jury would be able to use that information if they saw fit, to assess credibility. In certain cases, if appropriate, it would allow the police
to interview defence witnesses before the trial and make further inquiries. Those interviews may even assist the defence as well as the prosecution.I cannot say how often that will happen, but I strongly suspect that, in many cases, the witnesses who will be identified by the defence as people it wants to call will be people already known to the police in the sense that the police would have interviewed them before. It is quite likely that the defence has their identities because they form part of the unused material that has been disclosed by the prosecution. That is entirely proper: the prosecution has seen those witnesses and does not think that they would help its case; the defence wants to call them. The police and the prosecution will know what those witnesses are going to say, so it is unlikely that any further steps will be necessary, but at least they will know what is to be said. As I said, there is nothing conceptually new about that.
Two things happened as a result of the full debate that took place in Committee in another place. First, the clause as drafted would have required the defendant to give notice of an intention to give evidence himself or herself. That has been changed. We agree that that would be inappropriate; we have accepted that point. The second is to deal with what I suggest is the only significant objection that has been raised here: the risk that the police might be given the opportunity to put undue pressure on defence witnesses.
In what I am about say, I do not accept the basis of that, but important protection is provided in the amendments, which would give rise to a new clause enabling a code of practice to be made governing the conduct of police interviews with defence witnesses disclosed under the new arrangements. That will provide a substantial safeguard. An undertaking was given in another place to introduce that provision and the amendments will discharge that undertaking.
I know that we shall come to them later, but let me identify what the amendments will do. They will require the Secretary of State to consult chief police officers, the Law Society, the Bar Council and the Institute of Legal Executives before issuing the code of practice or any revisions; a significant degree of consultation is anticipated before the code will be finalised. A number of practical issues will require careful thought. It will then be brought to this House and another place for consideration. The initial code will be subject to the affirmative resolution procedure, and the affirmative procedure may also apply if the code is revised.
We have produced a first draft of such guidance, which was sent by letter by my noble friend Lady Scotland to Members of the Committee. It includes provisions that address concerns that have been raised—I understand why—today. For example: what about somebody simply going around and knocking on the door without notice? The guidance would require a police officer wanting to interview a witness first to notify the accused's legal representative and to invite that person to be present at the interview.
It would also require a careful and accurate record to be made of that interview, advising the witness in advance that a record will be made and copying it to both the witness and the accused. So the accused will have a record and if there is any question of anything wrong being done during that interview—of undue pressure—the record will stand for the court's consideration. The record will also be seen by the witness, so that he or she can also check that it is accurate.
Where the accused is not legally represented, the police officer will have to inform the accused that he intends to interview the witness. The code will probably provide that he will then invite the accused to appoint a legal representative to be present at that interview. Special provision is proposed for witnesses who are juveniles, mentally disordered or otherwise mentally vulnerable, with a recommendation that an appropriate adult should be present during the interview.
Those, then, are the principal provisions of the indicative draft code.
Baroness Anelay of St Johns: I should make it clear that neither I nor my noble friend Lord Hodgson of Astley Abbotts have had sight of the draft code. I am sure that it is simply the fault of the post going astray, but it means therefore that I shall make no further comment today on the code of practice when we reach the government amendments. I shall have to reserve my position until the Report stage, when I will have had an opportunity properly to consider the paper that perhaps has gone to others.
Lord Goldsmith: Of course I accept entirely what the noble Baroness has said. I had understood that the noble Baroness had received the letter; indeed I have here a copy of the letter that is addressed to her. I understand that she is not in a position to give a detailed response, but I hope that what I have said about the substantial provisions—we are not debating the code at this stage—at least indicates that the Government have taken the concerns into account and propose a code of practice which will address and deal with them. I refer in particular to the principal objection, which is the risk that witnesses will be dealt with in an improper way.
I hope that in the course of my remarks I have dealt with the points raised by noble Lords. There is a difference of philosophy between certain people. I understand that Professor Michael Zander has never been in favour of any defence disclosure. I do not criticise him for that; it is a perfectly respectable point of view, but it not one that Parliament took in 1996 when it passed the Criminal Procedure and Investigations Act 1996 and it is not one with which this Government agree.
Lord Brittan of Spennithorne: Does not the Minister realise that he is making it more difficult for people to go along with what he proposes because in fact he is giving considerable weight to the argument for the thin end of the wedge? When proposals were put forward
and enacted requiring the disclosure of alibi and expert witnesses, those were definitely presented as exceptions to the norm. They were exceptions to the rule; because of something in the particularity of those defences, it was reasonable to ask the defence to provide certain details. To declare now that because those exceptions were admitted, conceded and enacted, the past has been sold and we can generalise on it, makes any future argument that what is being done is only minor and exceptional one that will be increasingly difficult to accept.
Lord Goldsmith: It is gratifying to see that the noble Lord has not lost his skills as an advocate. In what I have said this evening I have never advanced the argument that because something was done it means that we can do more. The noble Lord, Lord Dholakia, drew attention to and placed reliance on what has been said by Professor Zander. I simply indicated in response that Professor Zander has always approached this from a different point of view. I believe that I am right in recalling that he was in the minority on the Runciman Royal Commission.
Of course the amendments to the defence disclosure code being put forward by the Government have to be considered on their merits. I seek to put forward what are those merits. As I have said, I sought simply to indicate that people have approached this from different points of view. There is a point of view which holds that there should be no disclosure at all by the defence, and there is a point of view which holds that that principle is not right. In these clauses we can consider what that detail should be.
I appreciate that I have spoken for some time on this clause. Finally, nothing in this clause or in the other provisions changes the burden of proof.
Lord Goldsmith: The noble Lord, Lord Renton, and I agree entirely on that—a point made sotto voce by the noble Lord from a sedentary position. I do not disagree with him at all: the burden of proof will remain with the prosecution. The fact that the defence has had to give notification on certain points on which it takes issue with the prosecution and the fact that, under this clause, it will have to provide the names of the people it intends to call as witnesses, does not take away from the fact that it will still be for the prosecution to prove the case. That remains, and rightly so.
9.15 p.m.
Lord Dholakia: I am grateful to the Minister. As with Clause 32, I am sure that we shall come back to this issue on Report.
Clause 34 [Notification of names of experts instructed by defendant]:
Baroness Anelay of St Johns moved Amendment No. 112:
- Page 22, leave out lines 37 to 39.
The noble Baroness said: In moving Amendment No. 112, I shall speak also to Amendments Nos. 113 to 116, 118, 119 and 241.
Amendment No. 112 is a simple drafting amendment. It leaves out subsection (2) because we simply cannot understand why it is necessary. It appears otiose and I would be grateful if the Minister could explain why it is vital to the Bill.
Amendment No. 113 goes to the heart of our objections to the provisions of Clause 34, which imposes a new requirement on an accused to serve before the trial a notice giving details of the name and address of any expert witness consulted, even where that expert witness is not then called. This is the step too far. The noble and learned Lord has explained how we need not worry about the exercise of any of these clauses because this is nothing much of a change; it is a rather rational, pragmatic development. As far as we are concerned, this is not so much a step change as a jump off a cliff. The clause widens considerably the disclosure duty imposed on the defence, which already has to give details of any expert witness it proposes to call to give evidence.
Our amendment represents a compromise to our objection to the clause. It prescribes that if the evidence of a witness is not relied upon by the accused, and no copy of that witness's report has been served on the prosecution, no reference should be made at the trial to the fact that the defence had originally instructed the expert witness. Without this compromise we would find Clause 34 unacceptable.
I am grateful to the London Criminal Courts Solicitors' Association for its briefing. It points out that in order to give expert opinions of substance, instructing experts requires openness both with the legal adviser and with the client. Almost invariably experts will be given legally professionally privileged material. They can be instructed for a variety of reasons, including on areas of cross-examination, in complex areas of expertise.
I come back to the question which was asked in a slightly different context during the debate on the previous clause: why should the prosecution require a notice specifying the name and address of the person instructed with a view to his or her providing any expert opinion for possible use as evidence at the trial of the accused? One can only assume that it is to enable the Crown to approach such witnesses and to obtain details of the opinion sought. We would argue that that would threaten to disclose legally professionally privileged material. That could not only compromise the expert's integrity but also derail trials following applications for stays of proceedings on the basis of abuse of process.
It is also possible that the new measure would deter practitioners from seeking more than one source of advice. I am sure there is nothing wrong per se in doing
that. It would deprive the accused of expert advice and weaken the independence and vigour of the accused's defence representation. There may be justifiable reasons for approaching more than one expert; there may be nothing shady or dodgy in doing so. For the prosecution at a subsequent trial to try to draw adverse inferences from the fact that one has been to more than one expert would be very retrograde. There can be justified differences of opinions among experts—in the medical world that is not uncommon. It could be that someone has sought expert opinion and that opinion has simply turned out to be wrong.We are concerned about this provision. We are seeking a way forward through compromise. As the clause stands, our compromise is that the prosecution should have the information about the expert but that that information should not be used to draw adverse inferences during the course of the trial.
The Government have had long warning of this compromise. It was debated in another place at the beginning of this year and so they have had half a year to consider it. I hope that they have reflected well. I am certainly aware that many of my colleagues think that I am being far too generous to the Government in making this kind offer of a compromise to them. Of course, I am always sweet reason, particularly at this time of night.
I can be extremely brief on the last group of amendments. The other five are all consequential on Clauses 33 and 34 standing part of the Bill. I have tabled them for completeness. I beg to move.
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