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Lord Goldsmith: I do not accept that the question of legal professional privilege depends, when one is talking about a defence expert, on whether the case is criminal or civil. Exactly the same principle applies.

Lord Thomas of Gresford: I merely want to point out to the Minister that, in practice, shopping around does not take place these days because legal aid is not granted for it. The fact is that 99.9 per cent of cases are legally aided. Every time one wants a professional and expert opinion these days, one has to apply to the fund for it to be granted. That is the way to control shopping around, not to deal with it in the way proposed in the clause.

Lord Goldsmith: I hear what the noble Lord says. My point in response to the noble Lord, Lord Brittan, is that I make a virtue of the fact that the proposal is modest, because it does not contravene the principles referred to as important by Members of the Committee who have spoken in this short debate. It will have some value for that, and some benefit in deterring shopping around and not allowing a false impression to be provided in certain cases. The Government will seek to ensure that the clause stands part.

Lord Thomas of Gresford: If the purpose of the clause is to avoid a false impression being created, it follows that the prosecution will reveal to the jury or to the adjudicating magistrates that other people have been approached for their names and addresses. If that information is not given, the false impression to which the noble and learned Lord referred remains.

Lord Goldsmith: I repeat. Read Clause 38 and see in what circumstances adverse inferences can be drawn. It does not include that.

Lord Mayhew of Twysden: Perhaps I may intervene before the noble and learned Lord sits down. He has been assailed by many noble Lords, because, no doubt inadvertently, he omitted to deal with a little scenario that I suggested. If the principle or rationale of Clause 34—as much in what it does not do as what it does do—is to protect legal privilege, how is it that the volunteer of an opinion is not included in the same provisions? In his case, no suggestion of legal privilege can arise, and yet the Bill does not propose to catch such a volunteer in that way. I asked rather tentatively and diffidently what was the principle that led to that distinction.

Lord Goldsmith: I apologise for not having addressed the example that the noble and learned Lord put to me in what I understood to be a friendly way.

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The principle is that the provision in Clause 34 relates only to those cases where the accused has instructed a person with a view to his providing any expert opinion. The principle therefore is those he has instructed, but then does not use. If the defendant is fortunate enough to be assailed by offers of gratuitous expert advice from all sides, that is an entirely different issue. If the defendant does not take those offers any further, but then instructs one or more of those people actually to provide a report for possible use as evidence at the trial, there is no reason why this provision should apply. It is not just legal professional privilege which is the principle behind the provision. Legal professional privilege is a safeguard that should be guaranteed.

Perhaps I may address Amendment No. 112, which the noble Baroness moved. The provision is not otiose, as she suggests. Clause 33 introduces a general obligation for the defence to disclose the witnesses it intends to use at the trial—an obligation which has applied in the case of defence alibi and expert witnesses for many years.

Clause 34(2) removes the obligation of the defence to disclose an expert under Clause 34 who has already been disclosed under Clause 33. In short, it makes it clear that Clause 34 applies only to unused expert witnesses.

The amendment would duplicate the witness notice requirements. The accused would be required to include details of experts that he intended to call to give evidence both in the witness notification provision and in the expert provision. There seems to be no need for that.

Lord Thomas of Gresford: Will the Minister deal with the point raised by the noble Baroness, Lady Mallalieu, about the inquiry? Frequently, if not invariably, the solicitor will telephone a particular expert to get a feeling as to how he will deal with the issue at hand. Is that "instructing" in the terms of the Bill, or does it mean a formal letter of instruction for which payment will be given?

Lord Goldsmith: Whether someone is "instructed" within the terms of the clause does not depend on whether it is done orally or by letter. English law does not depend on formalities in that way. It is a question of fact. Has the accused instructed a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused? I can envisage circumstances in which an inquiry on the telephone—which may include questions such as "Does this fall within your field?" or "Have you got experience of this sort of incident?"—would fall short of instructing someone with a view to his providing an expert opinion for possible use as evidence at trial. It will always be, and is, a question of fact in each case.

Lord Mayhew of Twysden: I am sorry to prolong the debate and I shall do so for only 30 seconds. The Minister concedes that the prosecution has to disclose evidence which is adverse to its case. Let us suppose that the prosecution is favoured with a volunteered opinion which is adverse to its case and favourable to

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the defence. Surely it would then be incumbent on the prosecution to disclose it. Yet if the roles are reversed, the Government do not intend to apply the same rule. Is there any reason for that, save that to do so would impinge on the burden of proof?

Lord Goldsmith: We are adopting an entirely different approach between prosecution and defence. If the prosecution has examples of expert reports that undermine its case or advance the case of the defence, it will be obliged to disclose them. That is not what is being proposed in relation to the defence. The obligation on the prosecution in relation to unused material is more extensive. I do not complain about that—that is the way that we have drafted the Bill and it will remain more extensive.

Baroness Anelay of St Johns: I thank the noble and learned Lord for his answer to Amendment No. 112 and I accept his explanation. He took us further forward than was done in another place.

Several Members of the Committee have spoken as though Clause 34 stand part is grouped with these amendments. The Minister perhaps thought that it still was, but it has been separated. It is natural for Members of the Committee to take that within the general debate on my group of amendments.

The Minister said that the clause is intended to deter improper shopping around and redress the imbalance between prosecution and defence. That has taken us to the root of the objection which many of us on all sides of the Committee have with this clause.

I was disappointed that the noble and learned Lord returned to the phraseology used in another place, trotting out the old argument of shopping around. I thought that the noble Lord, Lord Thomas of Gresford, was right in putting forward the point that most people are on legal aid. The Legal Services Commission will not allow one to shop around for experts. It is the guardian on that.

Even so, why should not the defence be allowed to instruct more than one expert and on receipt of that report then decide whether to rely on it without the threat that the prosecution might leave the court to draw an adverse inference on the defence's decision not to use the expert's opinion? Why should a defendant's case be prejudiced by arguing in court on peripheral matters about why an expert has not been called? That is liable to distract the jury from the real issues in the case.

The noble and learned Lord said that he would look at Clause 38 and that adverse inferences affect Clause 34. In that case, he should accept my Amendment No. 113 with open arms. It makes it clear that the information which goes to the prosecution with regard to the name of an expert whose evidence will not be relied upon cannot be used in court. My amendment

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makes it clear that that evidence cannot be used and therefore no adverse inference can be drawn. My honour will be satisfied.

I have offered that compromise to the Minister, but he has not seized it. I therefore give notice that although I shall now beg leave to withdraw Amendment No. 112, I shall ask to test the opinion of the Committee on Amendment No. 113.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 113:

    Page 22, line 41, at end insert—

"(4) In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused, and no copy of his report having been served by the accused on the prosecutor, no reference shall be made at trial by the prosecutor or evidence adduced by him, to the effect that the accused had approached such a person for his expert opinion.""

The noble Baroness said: I beg to move.

9.59 p.m.

On Question, Whether the said amendment (No. 113) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 47.

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