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Lord Carlisle of Bucklow: May I support most strongly my noble friend Lady Anelay on this amendment? I ask the Attorney-General what is the purpose of this new clause. It states:

If he is intending to call the expert witness whom he has approached, then his reason is now required in the law as I understand it, that he should disclose that evidence to the prosecution when the expert is called. But if he consults an expert whom he chooses not to call and does not intend to call, what is behind the suggestion that he should be required to give that expert's name and address to the prosecution?

For the purpose of this argument I am prepared to accept that the Attorney-General is correct when he says that the Lord Chief Justice was wrong in saying that if the prosecution went to four experts and they intended to call two of them, they would not be required to disclose details of the other two. As I understand it, I believe that under the rule of unused evidence they would be required to disclose the names of the other two experts.

But that totally ignores the whole issue of the burden of proof in a criminal trial. If a person is charged with an offence and those on his behalf choose to go to an expert who says, "I am sorry, I cannot help you" or says, "I am even more strongly against you

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than the prosecution expert has disclosed in the depositions", what use is the prosecution then going to make of that statement? Is it intended that they should take a statement from that expert? If so, is it not almost obvious that they will be faced with the problem of professional privilege? Are they going to attempt to obtain evidence from the expert of what he has been told by the accused, which they could not get otherwise because it would be covered by professional privilege? If he goes to a doctor with a defence of diminished responsibility and the consultant says, "I do not think that your client is of diminished responsibility", presumably that would be based on evidence he has learnt through professional privilege from the solicitor, from the client.

What is the other possible use of knowing the name and address of the unused expert? Presumably, it is to ask the defendant when he goes into the box, "Tell me, did you go to see professor so-and-so in his rooms in Harley Street on 10th December?" "Are you going to call him?" "No". What would be the purpose of that? Would it be an improper line of cross-examination or would it merely be to sow the seeds that there is an inference to be drawn from the fact that he is not going to call his expert?

I have kept quiet on Clauses 32 and 33. I have listened with interest to what the Attorney-General has said. I am away from it now, but I understand that there is a lot of complaint about the time taken up on the disclosure procedure and that in fact the fault is not all on one side. On any view it seems to me that it is going too far to ask the defence to express, expose or give the name and address of any expert that they have chosen to consult. I shall be grateful to hear the Attorney-General's justification for such a change.

Baroness Kennedy of The Shaws: I, too, would like to express concern about these matters in this Bill. I want particularly to raise concerns about the impact of this sort of change. I sometimes wonder whether governments embark on change without understanding the long-term impact that some of the changes might have on the ecology of the legal system, doing huge damage without thinking through areas of change. The temptation for some defendants would be to instruct only those experts who could be guaranteed to express an opinion favourable to the defence. Such a breed of tame defence experts would be an inevitable, unattractive and unwelcome feature of the criminal justice system. I ask the Government to take into account the way in which there are unforeseen consequences of what looks like reasonable change.

This change offends the common law principle of the privilege against self-incrimination. I want to remind the Minister that in the Court of Appeal last year, 2002, there was a judgment in the case of Regina v Davies. The court examined the relationship between a defendant and an expert instructed on his behalf, holding that evidence obtained by the expert in such circumstances should be treated in the same way as communications between the defendant and his legal representative. In that particular case the defendant was convicted of murder and his defence was, among

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others, diminished responsibility. The trial judge ordered the defence, on application by the Crown, to disclose the opinion of a consultant psychiatrist instructed by the defence to examine and report on the defendant, but upon whom the defence had not been relying. The doctor gave evidence at the trial for the Crown. The Crown chose to use this particular expert and to rely on him because he had a view contrary to the one that was ultimately being relied on by the accused.

The conviction was quashed and the Court of Appeal found that the judge was wrong to order disclosure of the psychiatrist's opinion, being an item subject to legal privilege. Of particular relevance to this response was the following passage in the judgment of the court, which I recommend to the Minister:

    "The appellant was ... entitled to be protected from inadvertent self-incrimination. If a defendant agrees to be interviewed by a doctor instructed by the prosecution, he has the opportunity of being advised and knowing that what he says to the doctor may be used in evidence at the trial. If he is interviewed by a doctor at the instigation of his own lawyers for the purposes of his own defence, he is entitled to assume that what he says has the same status as his communications with his own lawyers."

I do many cases involving psychiatry in which the expertise of psychiatrists is very important in the conduct of the case. Sometimes, for example, I may decide not to call a psychiatrist who I have instructed because I would be running a number of defences. For example, a battered woman who had killed her husband may be saying, "I was defending myself, he was battering me at the time and I picked up a knife and I assaulted him and it led to his death". So self-defence may be my predominant area of defence, but I might also want to explore the possibility, as an alternative, of diminished responsibility. It may be that I have a report from the psychiatrist that says that this woman is on the margins. She might be diminished, because she is a battered woman who is suffering from depression and falls into the category of battered woman syndrome, but it is very marginal and can easily be challenged. I may make the calculated decision not to distract the jury from the central issue of self-defence and therefore not to rely on the psychiatric evidence. Should it then be handed over to the Crown in those circumstances? I may want to rely on psychiatry in running provocation, which I can nowadays do. Should I be expected to disclose that information to the Crown?

We are moving into quite dangerous territory here because of the way in which it may lead to miscarriages of justice. The enforced disclosure by the defence of unused expert reports would violate common law, statute and current case law. In my submission to this House, we see nothing in the proposals to justify such a course. In fact, it would be very detrimental to justice.

It is important that the Government look at the unforeseen consequences of some of these recommendations. I think that the quality of expertise will be contaminated because tame experts will come

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forth. I greatly support the recommendation of Lord Justice Thorpe that the way to deal with bad experts is to have a system of accreditation.

9.30 p.m.

Lord Mayhew of Twysden: I could not hope to improve on the contribution of my noble friend Lord Carlisle of Bucklow. However, I want to assist the noble and learned Lord the Attorney-General, which will confirm everybody's belief that there is an unholy mafia between those who have held that office. I want to help him take the opportunity to explain the principle behind the clause by suggesting this scenario.

Let us suppose that there is a notorious prosecution or, more accurately, a notorious offence, which is the subject of a prosecution. At some stage—and this is not bizarre—one or more people with expert opinions and qualifications volunteer their assistance and send to the defence copies of their opinions and what they would be prepared to say. They have not been asked for it, but they volunteer it. The clause does not cover that—there is no obligation to disclose that, and quite right too, because that would surely be in conflict with the preservation of the burden of proof regarding which the noble and learned Lord so fervently said amen to my noble friend Lord Renton. But why not? If it is proposed to go ahead with Clause 34, what is different from the scenario that I suggest? It would be quite wrong, because that would be to compel the defence to give access to their pool for the purpose of allowing the prosecution to fish in it in order to enhance the prosecution case.

What is different in principle with a case in which the defence has instructed and consulted the expert? It just adds to the inherent validity or persuasiveness of that expert's opinion that he has been consulted on behalf of the defence. So if the noble and learned Lord is to avoid the charge that this provision is to enable the prosecution to fish in a pool to which the defence has been compelled to give them access, I would be very much obliged if he could explain the difference in principle between those two cases.

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