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Lord Thomas of Gresford: The great objection to this clause seems to be on the basis of legal professional privilege, the primacy of which has very recently been underlined by the Privy Council in the case of B and Others which was decided on 19th May last. It may very well not have played any part in the noble and learned Lord's consideration, and certainly not in the consideration of those who have drafted this clause.

It was said very firmly by the Judicial Committee of the Privy Council, with the noble and learned Lord, Lord Millett, delivering the judgment, that it was decided as long ago as the 16th century that legal professional privilege was a supreme right for people. From a public policy point of view, although there may be compelling reasons for legal professional privilege to be breached in some way or other, nevertheless the decision was made, as long ago as that, that legal professional privilege should always prevail.

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There is a distinction between Clauses 33 and 34. Clause 33 deals with witnesses of fact. Clause 34 deals with expert witnesses who give opinions on instructions. It is inevitable that those instructions will have to be based to a degree, sometimes very considerably so, upon privileged information. Often it will contain an account of what has happened. In the kind of case to which the noble Baroness, Lady Kennedy, referred, where one is obtaining a psychiatric report, and so on, an account of the incident may be given which is subject to legal professional privilege and details may be given to an expert in other fields as to how an incident happened, all of which should not be disclosed—as was said in the case of B and Others and, earlier, by the Judicial Committee of this House in the case of Derby Magistrates—in a way which would in any way interfere with the confidential relationship between the lawyer and his client.

If one approaches the issue from that point of view, it seems to me that any disclosure of names and addresses of witness who will not be used can have no other purpose than to encourage the prosecution to do the kind of fishing expedition to which the noble and learned Lord, Lord Mayhew, referred a moment ago.

Experts frequently are not used. They sit in court. They have provided reports which are not disclosed. But they are there to advise the defence in dealing, for example, with a pathologist, a psychiatrist, and so on. Sometimes only one expert is heard for the prosecution; and the defence is advised, confidentially, without the expert himself giving evidence for the defence at a later stage.

Cases vary. In a case in the news last week—I was involved in it at earlier stages—there were four psychiatrists on one side and three on another. I can think of another case where there were three pathologists on one side and two on the other. That happens from time to time. More frequently, the expert for the defence is not called.

This clause is an intrusion upon that delicate balance to which the noble Baroness, Lady Kennedy, referred, which has preserved the reputation of the criminal justice system of this country over the years.

Baroness Mallalieu: Perhaps I may repeat to the noble and learned Lord the questions which others have asked and which cause me anxiety about the clause. First, why is it necessary? Secondly, what is the use to which the noble and learned Lord anticipates it will be put if it forms part of the Bill?

There are a number of reasons why in a criminal trial experts may be instructed by the defence. First and foremost, the Crown has served its experts and you want someone to check whether or not it is all right. Secondly, you have some instructions from your client—for example, he says he acted in self defence—and you want to know from an expert whether the injuries the deceased suffered were consistent with that. In other words, you want to know whether he has some support for his defence. On other occasions, you have a theory perhaps of your own. It may not form

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any part of his case but you may have doubts about his mental state and his capacity. In those circumstances, you would instruct an expert to discover whether there was a possible medical defence.

As the noble Lord, Lord Thomas, said, often an expert is instructed simply for the purposes of assisting defence counsel with cross-examination during the course of the trial. In order to obtain a report, privileged information will have to be given.

The noble Lord, Lord Thomas of Gresford, has indicated the difficulties which—it seems to me and others—arise with provisions of this sort. I am not sure that I understand from the wording of the provision as it stands to what extent, for example, not just unsolicited expert opinion has to be notified, but informal opinion, which is often the way in which solicitors and barristers make initial approaches. They telephone an expert who has been known to them from other cases, and ask over the telephone for comments on the facts. Are all those names and addresses to be provided? If they are, what happens when they reach the prosecuting authority? Is someone going to interview each of those witnesses? If so, will privilege thereby be breached?

Lord Goldsmith: I shall start by saying something about the concern that led to this clause, and then to talk about what this clause does not do. I have indicated, and the noble Lord, Lord Carlisle of Bucklow, was good enough to repeat, that where the prosecution have consulted more than one expert, but only intend to call one, then there is at least a strong likelihood that they will be required to disclose that fact as part of the unused material, and are likely to have to disclose the unused report itself.

The police believe that there are some defendants who might consult several experts until they find one who provides a report that suits their case, and which is used at trial—so giving an impression of the merits of the defence case, which is at variance with the facts, because of the seemingly authentic, impartial and authoritative aura of an expert witness. There was a desire that, given that experts are intended to be independent, impartial and not advocating for one side or the other, there should be no reason why such unused reports should not be disclosed. But that is not the effect of the clause. It does not require that any unused expert report should be disclosed, precisely because of legal professional privilege, the importance and existence of which the Government and I were well aware before this clause was finalised.

Equally, legal professional privilege means that it would not be appropriate if an expert was known to have been consulted and was then seen by someone from the prosecution. I remind noble Lords that there is no property in a witness. It would not be appropriate to probe that expert over the opinion that he had given before, still less to say to him, "please, can you provide a copy of the report that you have given". It would be inappropriate to ask for information that would indicate material which had been provided by the accused, for example. If it were a psychiatric report—my noble friend Lady Kennedy gave an example in

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which the psychiatrist based his opinion upon an account given by the defendant of what had taken place—that would be privileged information and ought not to be disclosed.

There are circumstances in which an expert does not have privileged information and where it would not be inappropriate for one party to consult an expert who had been consulted by another. That happened to me in a case in the early 1980s—not a criminal case, a civil case. But it went to the Court of Appeal, which said that it was quite appropriate for the other side to have consulted an expert that we had consulted, there being few experts in that field. Of course, he was not at that point giving evidence. He then did give expert evidence, not on the basis of what he had said to us, but following his discoveries as a result of the instructions that he had received.

The clause was intended to deter shopping around when it is improper—I am not at all suggesting that it always is—and to do something to redress the balance between prosecution and defence disclosure requirements in the area. It would be possible under the clause, provided that the expert was not questioned about the work done for the defendant or asked to give any opinion that would disclose in any way legally privileged material that he had had, for such a person to be consulted and employed by the prosecution. However, I accept that the clause does not attract the sanctions provided for in Clause 38, as Members of the Committee may have noticed. Again, legal professional privilege lies behind that restraint on behalf of the Government.

The provision remains modest and does not involve disclosure of the report, although my noble friend Lady Kennedy suggested that it did. I fully recognise the constraints of legal professional privilege. I am grateful to those Members of the Committee who reminded me of several cases that refer to it. I am glad to say that I was well aware of those principles previously. Although the clause, because it is modest, may have limited effect, it will still do something to redress a balance that exists.

9.45 p.m.

Lord Brittan of Spennithorne: The Minister has talked at length about the limitations on the use of the clause—there must not be interference with professional privilege, there must not be disclosure of communication from the defendant to the particular witness, and everything else that is not allowed. If all those constraints are accepted, it is very difficult to see any significant benefit in such a clause. What are the circumstances in which it is really desirable to ask Parliament to change the law which would properly enable the clause to be used in a way that has real value?

I am not persuaded, and I do not think that the Minister has begun to give any kind of colour as to the circumstances in which that would be really beneficial. We must bear in mind in particular that, even if one wished to be as scrupulous as possible in avoiding

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impairing professional privilege, what an expert says after he has been approached by the defence is bound to be coloured by that. It is extremely unlikely that, in a criminal as opposed to a civil case, he would be able to give evidence to the prosecution that would be proper.

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