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Hilary Benn: May I undertake to reflect on the fair point that the hon. Gentleman has made, and to which we can return? I hope that that is helpful.
The hon. Member for Southwark, North and Bermondsey asked a question about the list. It is supposed to include only those whom the defence intend to call, rather than being a speculative list. He also asked a question about ambush defences, which he acknowledged are rare. The royal commission on criminal justice Crown court research study No. 19 drew attention on page 142 to a survey that was done of prosecution barristers. According to that group, ambush defences were reported in 41 out of 601 cases in which there was a substantive reply to the question. That is some 7 per cent. The answer to the hon. Gentleman's fair question is that ambush defences are rare, but they happen. The provisions are therefore sensible.
Vera Baird: Is that the research that was done for the Runciman Commission? If so, it is 10 years out of date, and expressed an opinion when there was, for instance, an adverse inference drawn from someone's not giving evidence or not setting out their case in interview. There is now much less scope for adverse inferences.
Hilary Benn: I accept entirely my hon. and learned Friend's point. The report that I referred to was published in 1993. However, the hon. Member for Southwark, North and Bermondsey asked what the research evidence was, as opposed to the general impression. I accept my hon. and learned Friend's point. However, to the extent that ambush defences might continue, the provisions are sensible.
The clause is designed to redress the present imbalance between the prosecution and defence disclosure requirements in respect of witnesses. The prosecution has a duty to provide the defence with copies of all the statements made by witnesses whom they intend to call to give evidence at trial. That is disclosed as part of the prosecution case.
The principle of requiring advance notification of defence witnesses is already well established. At present the accused has to provide details of alibi and expert witnesses whom he intends to call. For trial management purposes, the accused also has to indicate the number of witnesses whom he intends to call at the
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pre-trial plea and directions hearing. That means that, at that stage, the accused must have decided which witnesses he is likely to call to give evidence. To go a further stage and require him to provide the details specified by the clause merely builds on existing requirements. That strikes me as reasonable.
The advantages to the measure are that it deters surprise witness and ambush defences in so far as that remains a problem, helps to weed out incomplete, inadequate or false defences—indeed, it enables the police to make criminal records checks on defence witnesses, thus helping the jury to assess their credibility—and allows the police to interview defence witnesses before the trial, if necessary, and to make further inquiries.
The amendments would remove the mandatory element of both the witness notice requirement and its components. If the accused is under no obligation to comply, the clause is rendered ineffective. We consulted on the proposals and there was an even response in favour and against.
The final issue was identified by the Chairman of the Home Affairs Committee. The Government recognise that it will be important both to reassure defence witnesses who may be interviewed by the police or the prosecution before trial, and to protect the prosecution from unwarranted allegations of misconduct in the course of such interviews. My noble Friend Lord Falconer said in evidence to the Home Affairs Committee—I see the hon. Member for Witney (Mr. Cameron) acknowledging it—that we accept the need to ensure that suitable arrangements are made for the conduct of interviews with defence witnesses. On Second Reading, my right hon. Friend the Home Secretary undertook to provide for a code of practice. We are considering, in consultation with others such as ACPO, how best to achieve that. We aim to introduce proposals for an interview code for consideration on Report.
As my right hon. Friend has already said, we envisage that the code will include a requirement to offer a defence legal representative the opportunity to be present. That would be in line with the solicitors' professional conduct guide. We also envisage including guidance on the use of audio recording in appropriate circumstances—another point that was raised by the Home Affairs Committee.
Mr. David Cameron (Witney): Can the Minister clarify the pre-notification that the prosecution will have to make to the defence if it wants to talk to one of its witnesses? Will the code of practice be specifically mentioned in the Bill? The Select Committee recorded on 5 December 2002:
''We would prefer to see a provision of this nature be included in the Bill, rather than left to codes of practice.''
In order to give us some certainty, will the code be referred to in the Bill?
Hilary Benn: The honest answer to the hon. Gentleman's fair question is that we are still considering the matter. However, I undertake to return to it on Report, and I am mindful, in reinforcing the comments of the Home Secretary on Second Reading, that the Home Affairs Committee
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has raised a fair and important point about appropriate safeguards, so that justice is seen to be done in the operation of the new requirements. I hope that it is helpful to know that we shall return to the matter.
Simon Hughes: I am grateful for the Minister's factual answer to the question about how often that sort of defence has arisen. As the hon. and learned Lady pointed out, we are now 10 years out of date, so I accept that the figures must be taken with a pinch of salt. If any later evidence comes to the Minister's attention, it will be helpful to know about it.
In the case of many of the questions that have arisen during the debate, a fine balance has to be struck as to whether we should come back to them on Report. The Minister has gone halfway to reassuring us, but he will understand that it is appropriate to have further consultation and deliberation on issues that are still causing concern before we sign up to the clause, or decide that it is not something that we can sign up to. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—
The Committee divided: Ayes 12, Noes 2.
Division No. 7]
AYES
Allen, Mr. Graham
Baird, Vera
Benn, Hilary
Clark, Paul
Harman, Ms Harriet
Heppell, Mr. John
Kidney, Mr. David
Lucas, Ian
Mann, John
Stinchcombe, Mr. Paul
Taylor, Ms Dari
Turner, Dr. Desmond
NOES
Heath, Mr. David
Hughes, Simon
Question accordingly agreed to.
Clause 29 ordered to stand part of the Bill.
Clause 30
Notification of names of experts
instructed by defendant
5 pm
Simon Hughes: I beg to move amendment No. 200, in
clause 30, page 19, line 22, leave out 'must' and insert 'may'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 229, in
clause 30, page 19, line 25, leave out subsection (2).
No. 201, in
clause 30, page 19, line 28, leave out 'must' and insert 'may'.
No. 230, in
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evidence adduced by him, to the effect that the accused had approached such person for his expert opinion.'.
Simon Hughes: The clause deals with notification of the names and addresses of experts instructed by the accused, and the amendments would simply make it optional, rather than compulsory.
I want to take the opportunity to raise two issues, so that we need not return to them on clause stand part. First, the defence often seek expert reports. That is less true in legally aided cases, in which one must get authority to instruct experts. Defendants in such cases are unlikely to seek out and use a variety of experts, but those who are not legally aided, and who have the necessary finances, can do so. In seeking helpful expert reports, however, the defence may come across several bits of so-called expert advice that are not at all helpful, and the same may be true of the prosecution. The concern is that no prejudice should be attached to trying to find someone to deal adequately with a specific point, when the first so-called expert that one was advised to consult was unable to deliver.
There is also a constitutional point. There is obviously an entitlement not to incriminate oneself. There is plenty of case law on that, and there are plenty of precedents of judges ruling that measures must be taken to avoid self-incrimination. Have the Minister and his colleagues asked themselves whether the clause—with its compulsory, rather than optional element—prejudices that entitlement? Does it cross a line and put the defendant at risk by requiring him to reveal information that may be unnecessary? He may provide it in all innocence and in good faith, but it may not be helpful to him, through no fault of his own.
Mr. Grieve: To my mind, this is an important clause, and it has given me a lot of anxiety. I do not know how the debate on the amendments will develop, but I suspect that it will serve as a clause stand part debate. I therefore hope that I will be forgiven for widening the scope.
In a delicate way, amendment No. 200 is a wrecking amendment. I do not mean that unkindly, but it effectively negates the thrust and bite of the clause.
I have tabled a couple of amendments, and I shall come to amendment No. 230 in a moment. It might just provide a compromise on a clause that I otherwise would find it difficult to support.
I turn to basic principles. We had an interesting debate a few minutes ago about whether the requirements of clause 29 would involve notifying the prosecution of the names and addresses of speculative witnesses of fact, whose evidence had not yet been tested. I was interested to hear the Minister's answer—I found it extremely reassuring—which was that that was not the intention. However, under clause 30 we have precisely that. The defendant who approaches an expert with a view to ascertaining whether that person might be in a position to give evidence that would help his case is required to reveal the fact that he has done so and to reveal the identify of that person to the prosecutor.
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If one views witnesses of opinion and of fact as being identical in quality, the first major inconsistency is already creeping in. At the time when the requirement is being placed on the defendant to supply that information, there is no reason why he should have made up his mind whether to make use of that expert evidence. However, the matter goes further than that; the question is, what is an expert witness? In my view, an expert witness is a different animal from a witness of fact. He is brought in by the defence team, usually on the advice of the legal advisers, who want to know whether his professional expertise can provide evidence that could be placed before a jury—not to persuade the jury of a fact but to give information on which they can form their own opinion and judgment of the facts. I fail completely to understand the basis for this requirement.
What is the intention behind the clause, and what prompted the Government to believe that the provision was necessary? There may be a number of reasons. The first that I can think of—I detect that it may be the case, because I recall having read previous utterances of the Government on the subject—is that it is supposed to be an equal and level playing field. The prosecution will have a duty, if they approach an expert to back up their case who supplies a report that turns out to be unhelpful to their case, to disclose that information to the defence.
I do not think that that is a good analogy, however, because the duty on the prosecutor to make disclosure that we debated on clause 27 is the duty that lies upon the prosecutor as a minister of justice to ensure that no stone is left unturned, which includes taking points against himself, to ensure that justice is properly done during the trial. The duty upon the prosecutor is entirely different from the duty that falls upon those who represent a defendant. Their job is to listen to the defendant's case, to present his case in accordance with the facts, to challenge evidence in accordance with his instructions, and not knowingly to mislead the court on any matter; but they are subject to the defendant's instructions and the limits of his case.
The proposals drive a coach and horses through the legal professional privilege between a defendant and his legal representatives. If a defendant is in trouble he can give his legal representatives a case, which they think may be helped by expert opinion. However, if the expert opinion does not help that does not necessarily mean that the defendant has not been telling the truth; it merely means that they could not find an expert to help them.
5.15 pm
What is the philosophical or practical reason for requiring the defence to divulge that information to the prosecution? It will make it very difficult for defendants and their representatives to decide whether they should seek expert help. That is the real mischief in this clause. Anyone advising a defendant would have to point out to him that, for example, an expert on how motor cars are constructed might be able to help him, but that if the expert could not help that might be used to the defendant's disadvantage.
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What is the intention behind the clause? What use will the prosecution make of the information that they have been given?
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