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Mr. Stinchcombe: The hon. Gentleman makes an extremely interesting point. Will he consider the dovetailing of proposed new section 11(4)(b) and 11(10), set out in clause 34? It seems to me that we create two types of witness notice through clauses 29 and 30; new section 6C in clause 29, and new section 6D—expert witness notice—in clause 30. The proposed new section 11(10)(e) set out in clause 34 refers only to the ''witness notice'' of new section 6C and not to the expert witness notice of 6D. The proposed new section 11(4) states that only when a defendant calls a witness who was not included in a witness notice can adverse comment be made. Mr. Grieve: We know that at present an expert witness is considered to be in a different category from other witnesses. If one is to rely on an expert witness at trial on behalf of the defendant, one must serve the witness's report on the prosecution beforehand. His existence and the defence's reliance on him are fully divulged. There may often be a prosecution expert to whom the defence are responding. Alternatively, there may be no prosecution expert and the fact that one must serve that expert's report is designed precisely to prevent any ambush defence. It also gives the prosecution every opportunity to find their own expert to counter fingerprint, ballistic or firearms evidence. All sorts of experts creep in and out of court. The hon. Gentleman is right; I find it difficult to see that clause 30 has any relevance to the possibility of an expert witness's being called without proper notice having been received by the prosecution. At present, if an expert were called at very short notice there would certainly have to be an adjournment so that the prosecution could find their own expert witness to counter what could be damaging evidence against their client. It might also be subject to considerable comment by the judge, if not to the jury then certainly to those who did it. He might even refuse to admit the evidence. I take the hon. Gentleman's point. I can see the link-up in the text, but I cannot really see the practical link-up between clause 30 and clause 34, with its various sanctions. Mr. Stinchcombe: Looking at the interplay between those provisions, I simply wonder whether it would be possible for any adverse comment to be made at trial if an expert witness is indicated as likely to be called, only for him not to be called. Mr. Grieve: That is absolutely right. However, I draw only two possible conclusions from the presence of the clause. It may be designed to allow the prosecution to be given notice that somebody has come up with an adverse report to the defendant. The prosecution can tootle to the expert and say, ''Why don't you come along and be our witness instead of his?'' That raises a host of practical issues about the status of the report that was provided, and I find it extraordinary in view of the availability of experts to give reports. Column Number: 252 A much more unpleasant possible consequence arises if a defendant has never had any intention of calling as a witness an expert to whom he has gone. The defendant would have to tell the prosecution that he went to that person, and it would emerge that he chose not to call him. That could be used as a weapon against the defendant in cross-examination or in the prosecution's speeches. It fills me with horror that we could contemplate something that would create such manifest unfairness. Vera Baird: I, too, find this an interesting argument. A difficulty with seeing that as the major mischief behind the proposal is that it happens already. The hon. Gentleman has tabled an amendment to stop it from happening. A defendant's case may contain an issue for which expertise would be required. If the defendant does not call an expert, he is frequently asked during cross-examination, ''Have you instructed an expert? Are you calling an expert's evidence?'', only for no expert to appear to support his case. However, if the defendant has instructed someone, that person clearly did not disagree with the prosecution or else they would have been called. My fear is that the prosecution will call the defence experts. They will have the master card in their hand at the outset, of saying to the expert, ''Who first instructed you?'' The prosecution will not only have an expert who supports their case but one who was originally asked by the defence to support theirs. That could have a massive—and pretty unfair—impact on trials. Mr. Grieve: The hon. and learned Lady is absolutely right: that could be an even worse consequence. Amendment No. 230 was partly designed to find out the Government's intention. It would be prevent any reference being made at trial to the fact that the defence had originally instructed such an expert. As the hon. and learned Lady said, that already happens, but it will happen far more if the prosecution have been handed on a plate the basis to behave in that way. Speaking as a prosecutor, I must say that it is a dangerous tactic, and one that can easily prove not to be in the interests of justice, to start lambasting a defendant for not bringing an expert to court. It would be a different matter had he chosen not to call a witness who happened to be sitting outside the court and who would have been in a position to provide useful evidence. The clause makes me uneasy. I am happy to listen to the Minister. I tabled amendment No. 230 because I felt that it might help crystallise the debate. I also tabled another amendment to leave out subsection (2), because I cannot for the life of me understand the necessity of including it at all. I consider it otiose in relation to the totality of part 5. However, that is a drafting matter that I do not want to press further. An important point is at stake here. It is a great mistake to start wandering down this road, and I do not understand what the Government are trying to achieve by it. The damage that it will do will hugely outweigh any beneficial consequence to the Column Number: 253 administration of justice, the search for the truth, or any of those other terms that we like to consider. The Government would do well to drop it.Vera Baird: I perceive the mischief that the clause is intended to attack—at least, I think I might. I suspect that some of it derives from the Damilola Taylor case. In that case, as I understand it, the prosecution forensic pathologist was quite clear that the boy's death could not have been an accident. Because no defendants were under arrest by the time Damilola's parents wanted a funeral, the coroner ordered another post mortem to be carried out, to be furnished to the defence for such defendants as might be arrested and put on trial. The funeral then took place. No one but the defence ever saw the second post mortem report. It was not used in evidence. Consequently, it seems as if the inference to be drawn—certainly the inference of the Sentamu report—was agreement with the prosecution case that the death could not have been an accident. The defence did not call a third forensic pathologist, which was not possible, because the body was gone, but called an accident and emergency consultant, to say that in his opinion the death could have been an accident and that Damilola could have fallen on the bottle. I suspect that, granted that there were weaknesses in the prosecution case relating to the 12-year-old witness, and that a doubt had been raised as to whether the death was murder or an accident, the tactic of calling the accident and emergency consultant might have played a significant role in the acquittal. I appreciate that the acquittal is generally seen as wrongful, but I have no view about it myself. I can see how lay people might be very concerned that what appears to have happened is that the Crown obtained a report concluding that there was a killing and the defence obtained a report that said the same, but hid it and produced something else saying the opposite. If that is what drives the clause it is, generally speaking, unnecessary for it to be used, for the tactic was an extreme one for anyone to have taken. In my opinion it came very close to not being a proper tactic. Certainly, if a defence barrister is aware that an expert report obtained for his client states X, he is not entitled firmly to put Y to a prosecution expert. The defence should be guided and restrained a little by the knowledge that they have a report in their pocket agreeing with the prosecution, from a credible expert, and that they cannot do a wholesale cross-examination of him. I can see, from reading about the case, the mischief on which the clause is focused, but I want reassurance that the technique in question is not used much. Many mischiefs that could follow from the provision have been outlined by the hon. Member for Beaconsfield, and one is that legal aid limits the expert evidence that can be sought by the defence. The prosecution has, in theory, unlimited resources, and can obtain as many expert witnesses as it wants. Indeed, in an appeal in which I was involved, the McNamee case, 11 expert witnesses were called about a fingerprint. Column Number: 254 The defence will apply to the legal aid fund saying that they need an expert report. The one they get may not be helpful, but they will have to disclose it to the prosecution. They might not then be given legal aid to get another, because they have exhausted their right to further aid. Even if, exceptionally, they do get it, and the second report supports their case, they will have already furnished the prosecution with the first report, and the score will be 2–1. That will pose a practical danger for the defendant. I should add that expert reports are matters not of fact but of expert opinion. The defence might get a report from Dr. X, saying that the defendant has not got battered woman syndrome. They might then hand it to the prosecution but not be allowed to look for another expert, even though Dr. Y says that the defendant does have battered woman syndrome. That might make the difference in determining whether a victim of domestic violence who turns on her abuser is convicted of murder or of manslaughter. For all those reasons, this is very dangerous territory. As far as I can see, the proposals can have only an adverse effect on the defence. At the same time, I wonder how they will assist the prosecution and the witnesses. How will they help victims, in whose favour we are trying to balance the criminal justice system? The Crown can get as many reports as it wants to discover expert opinion on the issue, and nothing is added to its case by taking ones from the defence. There is a need for considerable thought about the proposals.
5.30 pm
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| ©Parliamentary copyright 2003 | Prepared 9 January 2003 |
