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Mr. Grieve: Amendments Nos. 185, 134, 187, 133, 188, 135, 226, 189, 136, 190 and 227 to clause 28 are designed to improve the Government's proposals, not to wreck them. I want to make that clear. I am completely comfortable with the principle of disclosure Column Number: 223 of the principal defence facts. After all, it was introduced in legislation under the previous Conservative Government. A criminal trial, even in an adversarial system, should not be a series of ambushes. Indeed, in my time at the Bar attempts at ambushing merely led to adjournments, which simply spin out court proceedings.It is plainly desirable, as far is as possible, that the principal facts and matters of a defendant's case should be made available to the prosecution before the trial. It is with that in mind that we tabled amendments to clause 28 and also tabled several amendments jointly with the Liberal Democrats. It may be helpful if I outline to the Minister the key issues in the amendments proposed to the 1996 Act by clause 28. First, and I saw the Minister nodding in reply to the speech of the hon. Member for Southwark, North and Bermondsey, it is clear that all parties must have an opportunity to make representations. I fully accept that the rules of court may provide for that, but my reason for tabling the amendment is to ensure that we at least have it on record that that is what was intended. We wish to avoid later suggestions, which can happen, that the usual principle of hearing all parties before coming to a decision is not being adhered to. The present wording is open to the interpretation that disclosure is confined to the prosecutor and to that particular defendant and to nobody else. Some reassurance from the Minister on that would be helpful. Amendment No. 134 calls for the exchange of a defendant's statement with co-accused to be simultaneous. I will return to this, for there is also provision in this part of the Bill for a subsequent statement. That creates problems. However, it is essential that there is simultaneous exchange of the first statements between defendant and prosecution and that there is a requirement that they should be supplied to co-defendants. It is possible to deal with that by rules of court, but we should at least consider the issue. We must also accept, and it is a point worth bearing in mind, that there may be circumstances when this cannot happen because the defendant is arrested late, for instance, and brought to trial later when two trials have been consolidated. Clearly, once a structure of exchanging evidence by means of statement setting out people's cases has been formalised, the last person to become involved in that process, if he is one of the co-accused, may have an unfair advantage over the others. That is a loophole that could be exploited by lawyers for the benefit of their clients. Mr. Graham Allen (Nottingham, North): Surely not. Mr. Grieve: I would very much hope not, but I am sufficiently realistic to know, because of my previous career of prosecuting and defending cases, that such things can happen. As we are concerned with ensuring fairness of proceedings, that is quite an important issue, and one moreover that may not be capable of a simple answer. Although in ideal conditions Column Number: 224 simultaneous exchange would be the right course of action, I accept that there may be times when it is not possible. However, the fact that it is not possible does not get away from the ideal, and that arguably raises questions about the potential for serious unfairness. It is a matter on which I would like to hear a little more from the Minister.Amendment No. 187 would delete the requirement that the defendant sets out in his defence statement the matters of fact on which he takes issue with the prosecution. At that point, the hon. Member for Southwark, North and Bermondsey and I part company. There are perfectly good reasons why a defendant, through his representatives, should identify the key areas of fact with which he disagrees with the prosecution. I believe that we should be realistic. A prosecution case may run to hundreds of pages of witness statements, and thousands of documents. Given the amount of time that a defendant will normally have with his representatives, it will be completely impossible for him to go through every statement, especially at an early stage, and dot all the ''i''s and cross all the ''t''s in order to identify every conceivable area of factual dispute that might arise between himself and the prosecution. Such an exercise is unreal and will in fact be unreasonable. We cannot get away from the fact—those of us who have practised in court know that it happens frequently—that witnesses say things in the witness box that suddenly lead to one being tapped on the shoulder and being given a piece of information that may turn out to be very important. Sometimes, conflicts emerge that, from the instructions that one was given by the client, one had no reason to expect. That does not necessarily happen because the client has been lying, but because human nature, with its flaws, works like that. Frankly, that is one of the reasons for the trial process. The trial is about people giving oral testimony and evidence, which can be challenged. People can hear what has been said and one hopes that the true pattern of what happened emerges—as do the areas of conflict. Sometimes, one might expect a major area of conflict in a trial, but asking just one extra question of the witness about what he said in his statement can lead to there being no conflict. My concern is that the wording is much too prescriptive. It will lead to enormous problems for legal representatives and defendants. We must face the fact that many defendants are semi-literate—some are illiterate—and have to be taken through statements with care. Many cannot easily read the statements. We are demanding too much. The solution that I suggest in amendment No. 133, which I prefer to amendment No. 187, is for a requirement to challenge the factual assertions in a prosecution case summary. Nowadays, my prosecuting work is almost exclusively confined to health and safety at work. I do one or two other things, but that is my principle area of practice, and I have never prosecuted a health and safety case in which a prosecution case summary was not provided to the defence. Indeed, in my experience, a well-worded and reasonable case summary, setting out the Column Number: 225 prosecution case, can be a powerful instrument in securing a guilty plea.In so far as a prosecutor produces such a case summary, there should be little difficulty in a defendant identifying the salient points of fact in it and saying whether he agrees with them. That gets us away from all the anxiety associated with a poor old defendant having to decide what he will say about some wholly peripheral assertion of fact by a witness, to which he might not know the answer, on which his memory might not be very good, and which might not be central to the case. Let the prosecutor decide what is important and identify it, and let the defendant respond. That seems to be a much better approach than the one contemplated in new section 6A. The Liberal Democrat amendment No. 188 would omit the requirement to provide points of law. There again, I disagree with the hon. Member for Southwark, North and Bermondsey, because that is too sweeping. There is no earthly reason why points of law known to the defence should not be communicated to the prosecution at the first opportunity. I do not have any difficulty with that. One must be realistic about the way in which the trial process works. Most barristers hope that they are competent, but although I have gone into a trial to represent a defendant knowing very well what point of law I wish to raise, all too often the point of law suddenly emerges from what someone has said, from what has happened or from the evidence. In those circumstances, it is vital that the defendant and his representatives should not be prevented by these provisions from advancing a full argument. Clearly, that places a burden on defence counsel, but it is not a difficult one. Defending barristers already have duties to the court. A judge would quickly see through a defendant who tried to exploit that loophole and would ask counsel, ''When did you first think about this?''—and we have a duty not to lie to the court. Although there is a duty on counsel or on the solicitor to communicate points of law that he intends to use as soon as they have crystallised in his mind, our amendments Nos. 135 and 226 would simply provide the reassurance of expressly setting out that counsel can argue points of law, as they emerge during the trial, without fear that someone will wave these rules in his face and allege that he is acting improperly. Simon Hughes: The hon. Gentleman understands, I hope, that our objection relates as much to the practical as to the principle. One cannot anticipate which facts and legal arguments will appear important. The defence would always be hampered if any change to their original list were interpreted as undermining their credibility. Mr. Grieve: I agree with the hon. Gentleman, but I have done trials in which the judge has spoken to counsel on the first day and said, ''I have read the papers and I anticipate that points of law will arise. Could you identify those points of law now and supply me with the authorities?'' So it is sometimes plainly obvious what will happen. Indeed, a trial may revolve Column Number: 226 around a point of law that is known to both prosecution and defence at the outset. The defence are not handicapped by having to declare their hand at an early stage when they know what that hand is going to be. My concern is that one often does not know what one's hand is going to be—Mr. Paul Stinchcombe (Wellingborough): I agree with large parts of the hon. Gentleman's argument. In every case in which I have been involved, matters have arisen that I had not anticipated, whether of law or of fact. However, is the correction not already built in to the Bill, through clause 34? New section 11(5) seems to admit of changes to the defence subject to the court making
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| ©Parliamentary copyright 2003 | Prepared 9 January 2003 |
