Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Thomas of Gresford moved Amendment No. 35:

29 Oct 2003 : Column 367

The noble Lord said: My Lords, the amendment raises important matters of principle relating to defence disclosure. Many issues arise from the clauses that cover it. I do not believe that a Wednesday night is an appropriate moment to raise the issues. The matter requires a fuller House and we shall come back to it at Third Reading. I shall move the amendment in order to hear what the noble and learned Lord says about it, but shall not take it further. I beg to move.

Baroness Kennedy of The Shaws: My Lords, the noble Lord indicated that the matter will not pursued tonight, but the whole issue of disclosure seems arcane to those who are not directly involved with it. That the Bill will require the defence to disclose a list of its witnesses to the Crown and the effect that that will have are matters of concern. Those witnesses will be seen by police. Even with the best will, that could be intimidatory to many people whose evidence may be necessary in seeing that justice is done.

If the police are to visit witnesses and see them in advance of the case coming to trial, there is every risk that people will not come forward. That is the concern of many of us. If we are not to proceed with the matter today, I hope that it will be debated fully and dealt with properly at the next stage of the Bill.

Lord Kingsland: My Lords, I believe that the noble Baroness was referring to a matter which would have been raised by the noble and learned Lord, Lord Ackner, had the noble and learned Lord been here—

Lord Goldsmith: My Lords, it would have been raised in Amendment No. 34, tabled by the noble Lord, Lord Thomas of Gresford, which he did not move. That amendment deals with witnesses, the subject to which my noble friend Lady Kennedy of The Shaws referred.

Lord Kingsland: My Lords, I entirely agree with what the noble Baroness said; but it is not a matter for debate today. I want to refer to Amendment No. 35; and, at the risk of testing the patience of noble Lords, to look at what was said about the matter in Committee.

In Committee, a number of noble—and noble and learned—Lords suggested that, in one way or another, the clause breached the principle of legal professional privilege. In responding to the debate, the noble and learned Lord the Attorney-General sought to reassure your Lordships at col. 732 of Hansard of 14th July 2003. I apologise to your Lordships in advance for quoting a number of extracts from what the noble and learned Lord said.

He said three things about the question of legal professional privilege. First, he said:

    "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 the clause was finalised".

29 Oct 2003 : Column 368

The noble and learned Lord went on to say, secondly:

    "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".

So far, so good. The noble and learned Lord then went on to add to that part of his speech:

    "It would not be appropriate to probe that expert over the opinion that he had given before".

The noble and learned Lord then went on to say:

    "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 which the psychiatrist based his opinion on an account given by the defendant of what had taken place—that would be privileged information and ought not to be disclosed".—[Official Report, 14/7/03; col. 732.]

However, at the beginning of the following paragraph in col. 733, the noble and learned Lord added:

    "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".

Further down the column, the noble and learned Lord explained what he meant by that statement. He said:

    "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".—[Official Report, 14/7/03; col. 733.]

But, as I understand it, in those circumstances, such a disclosure is already permitted in law. The noble and learned Lord, himself, said, at the beginning of the preceding paragraph that, in a civil case in which he had been involved in the 1980s, precisely that situation occurred. In response to an intervention by the noble Lord, Lord Brittan of Spennithorne, the Attorney-General said that there is no distinction between criminal and civil law. Therefore, in my submission, if the example that the noble and learned Lord gave of his own civil case is a motive for including this clause in the Bill, it cannot be a proper motive.

The one other reason that the noble and learned Lord gave for including the clause in the Bill was that it is intended to deter shopping around when it is improper. In my submission, that was extremely well dealt with by my noble friend Lady Anelay in her summarising remarks. She asked,

    "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?".—[Official Report, 14/7/03; col. 736.]

One is inclined to say to your Lordships that that is a very powerful argument. After all, earlier in the Committee stage we heard from the noble Lord, Lord Thomas of Gresford, that, in practice, such a provision is unnecessary anyway because 99.9 per cent of criminal cases are financed by legal aid and the rules of the legal aid system will not allow a defendant to seek to instruct more than one expert.

29 Oct 2003 : Column 369

But surely the most telling reason why your Lordships should not adopt the provisions set out in the clause is this. There is a very good reason why the rules of disclosure for the prosecution, on the one hand, and the defence, on the other, should differ. The prosecution must prove its case beyond reasonable doubt. If its experts differ, there is prima facie doubt and the court must know about that. I suggest that it works in entirely the opposite way for the defence. The reason the defence should be entitled to disclose only its best case is that that is the best way to test the prosecution's obligation to prove its case beyond reasonable doubt. That has been English law for, dare I say it, hundreds of years. Why on earth should the Government second-guess it now?

9.45 p.m.

Lord Goldsmith: My Lords, I note, first, that the noble Lord, Lord Thomas, moved the amendment, although we had debated this issue in Committee and, indeed, divided on it then, although not, I accept, on this precise amendment. However, we divided on an amendment which had substantially the same effect. I do not suggest for a moment that the amendment, as it stands, is not entirely proper and that it could not be the subject of another division. However, we had debated it.

Perhaps I may say, gently, to the noble Lord, Lord Thomas of Gresford, that to say that these matters have been put down for Report but that he does not really want to deal with them now but wants to save them for Third Reading turns Third Reading into even more of a Report stage than perhaps some people think is appropriate. I make the comment and no doubt others will consider whether it is worth elaborating on it at some other time.

The noble Lord, Lord Kingsland, dealt with the substance of the amendment. I am happy to be taken back to what I said in Committee. First, the starting point is that normally the prosecution must disclose the identity of any expert it has consulted but does not call, and any unused reports. Secondly, it is said that there is a problem with some defendants shopping around. I made clear that I accepted—if I did not explicitly accept it, certainly I accept it now—that because of a point made by the noble Lord, Lord Thomas of Gresford, about the likely lack of availability of legal aid for publicly funded defendants, the prospects of that happening are at least small. However, there can remain a problem in cases where defendants are privately funded.

Thirdly, I attempted to give a clear and I hope helpful answer not about motive but about where professional privilege created a difficulty. I accepted entirely that although there had been those who wanted there to be disclosure of experts' unused reports, professional privilege in the Government's view meant that that was not appropriate, so that was

29 Oct 2003 : Column 370

not a recommendation that found its way into the clause. I also accepted, as a result, that it would not be appropriate for anyone to go and see an expert to try to discover from him what he had been told by the defendant or what he had said to the defendant. I excepted a theoretical possibility—I indicated anecdotally that it happened to me—of someone whose skill was so forensic that it was acceptable for that person then to give evidence for one side rather than the other. I make it plain that that was no part of the motive. I have no reason to believe that that is a way that this provision would be intended to be used.

Next Section Back to Table of Contents Lords Hansard Home Page