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The noble Lord, Lord Lester, confessed, somewhat modestly, that his credentials for taking part in the debate were perhaps not adequate. I have to admit in a confessional mode to being the least learned of all who have spoken in the debate, and that includes the noble Lord, Lord Lester.
It has been an interesting and thorough debate. I have sought to provide your Lordships with a comprehensive account of the Bill. I have noted the many valuable points made in response, and the general welcome given to the Bill. In the time remaining I shall seek to address as many of those as possible. If I fail to respond to any particular points now, and if it were appropriate, I shall write to noble Lords before the Bill goes into Committee.
The noble Lord, Lord McIntosh of Haringey, referred at the outset to the principle of the defence having access to all relevant material. I accept that the accused needs access to material which might help him. At the same time there needs to be a reduction in volume of unnecessary material which currently has to be disclosed. The difficulty is in striking the right balance. The Bill aims to do that, as I have explained. Nevertheless we shall obviously wish to consider the detailed amendments which the noble Lord will table in Committee.
The noble Lord, Lord McIntosh, referred also to the detailed defence disclosure. I understand concerns about the details of defence disclosure and I look forward again to debate in Committee. However, I wish to make two points today. First, if the accused indicates only the general nature of his defence it will be difficult for the prosecution to know what additional material might assist the defence. Secondly, the accused will know the prosecution case against him before he is compelled to make disclosure. Clause 5 refers to service of the prosecution case, among other things, as a pre-condition of defence disclosure.
The noble Lord, Lord McIntosh, also referred to the code of practice. Almost everyone who spoke in the debate has mentioned the disadvantage of not having the code before the House at this moment. I absolutely understand the desire to have the code. At this moment I cannot be absolutely precise about exactly when it will be available. However, I shall keep all noble Lords up-to-date with the progress of that code and will ensure that everyone knows exactly when it is ready for publication.
The noble Lord, Lord McIntosh, also referred to preparatory hearings and the continuity of judge in such cases. In evidence to the Royal Commission on Criminal Justice it was suggested that preparatory hearings would be effective only if the trial judge presided over them. That that is so may be supported by the Divisional Court ruling that a change of judge between a preparatory hearing held under the Criminal Justice Act 1987 and proceedings in front of a jury could be accepted only in
Most of the comments of the noble Lord, Lord Rodgers of Quarry Bank, referred to Clause 42 in Part VI. He asked whether restrictions on reporting of unsubstantiated allegations cover all media. It is certainly our intention that the provisions should prohibit the reporting of allegations, whatever the medium in which they are contained.
The noble Lord asked in how many cases it is likely that a retrial will take place. We do not have reliable statistics to indicate the extent of the problem. However, it is clear from anecdotal evidence that interference with witnesses and jurors can be a serious problem in some cases. We believe that it is right therefore to ensure that the guilty are not able to avoid conviction if it later comes to light that they, or others on their behalf, have, for example, threatened or intimidated witnesses or jurors in order to secure an acquittal. The noble Lord asked how judges will be able to decide whether, but for such interference, the accused would have been convicted. The Bill requires the judge to be satisfied that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. The circumstances will, of course, vary from case to case. It may be that the witness who was intimidated gave evidence which was merely of peripheral relevance to the case. In such circumstances, the judge, who will have heard the details of what happened during the trial of the intimidation offence, may well conclude that there are no grounds for interfering with the original verdict. In other cases, it may be clear to the judge that the witness's evidence was so central to the case that the acquittal is unsafe.
The noble Lord also referred to Clause 38(5) which sets out the circumstances in which the judge may decide that it would not be right to take proceedings against an acquitted person. The noble Lord asked what that would cover. The Bill makes it clear that the lapse of time may be a reason for not re-trying an acquitted defendant. Other reasons might be that crucial witnesses in the original trial had since died or perhaps that the defendant himself was already serving a lengthy sentence for some other offence.
The noble Lord, Lord Rodgers, also referred to the West trial and posed the question which must be on the minds of many people, both inside this place and outside. He asked whether the Bill should be used to introduce a restriction on payments to witnesses. I have to say, as a personal aside, that we need to be careful about using the Bill in any precipitous way, without giving serious consideration to what I know is a complicated subject. Nevertheless, we share the concern which has been expressed about the behaviour of the press in that case. As the noble Lord, Lord Rodgers, said, my noble and learned
The noble Lord, Lord Rodgers, referred to BMA concern about Part II relating to police surgeons and disclosure. I am not sure exactly what he has in mind, but I make the point that the code of practice in Part II is for the police and other investigators who will have to have regard to it. It does not bind any third party such as a medical practitioner. However, I shall look into the detailed point which was made before the Committee stage and I undertake to write to the noble Lord.
The noble Lord, Lord Rodgers, also referred to Part I and comparisons between the Royal Commission recommendations and proposals in the consultation paper and the provisions of the Bill. He said that it would be helpful to him to have an analysis in tabulated form before the Committee stage and I shall attempt to have that arranged and will place it in the Library of the House.
The noble Baroness, Lady Mallalieu, referred to the mode of trial. Clause 34 requires the court to indicate to the accused, before he gives an indication of plea, what the consequences of his plea will be. I understand that the court may proceed in the absence of the accused but only--and this is the important point--if he is legally represented. The noble Baroness and the noble Viscount, Lord Runciman, referred to the timing of primary prosecution disclosure. Ideally, it should happen as soon as possible, but I am afraid that it is not practicable straight after charges. The case will need to be prepared and the prosecutor will need time to decide what requires to be disclosed. The important point about timing is well taken.
The noble Baroness and the noble Viscount, Lord Runciman, referred to sanctions for non-compliance which should apply both to the prosecutor and the accused. The Bill requires the prosecutor to disclose material which he thinks undermines his case and to comply with any court orders in relation to disclosure. The sanction, if he does not do the latter, is that he may possibly have to abandon the case.
The noble Baroness, Lady Mallalieu, and other noble Lords referred to supplementary disclosure by the defence and whether that should be possible. It is possible for the accused to make supplementary disclosure, if he so wishes. He is required only to make defence disclosure at the appropriate stage. If we built in requirements for several stages of disclosure, cases would be much delayed in coming to trial.
The noble Baroness referred to the resource implications of the proposals. The provisions will create new burdens but they will also remove some existing burdens. As the noble and learned Lord the Lord Chief Justice pointed out, the effect of disclosure is that some cases may not come to trial at all. We believe that overall the system will be more efficient and fair.
The detail of material on the schedule of unused material was also raised by the noble Viscount, Lord Runciman, the noble Lord, Lord McIntosh, and other noble Lords. The schedule will set out a list of material held by the investigator but which does not form part of
My noble friend Lord Alexander of Weedon referred to the continuing duty of prosecution disclosure. Clause 9 restates what is already required of the prosecution and I am delighted that my noble friend welcomed it. In response to a possible request from Justice or any other body that wishes to discuss the Bill either with my officials or with me, I can promise my noble friend that the door is absolutely open.
The noble and learned Lord, Lord Ackner, said that perjury should also be grounds for applying for a court order under Clause 38. We will consider whether any other offences relating to interference with the administration of justice should be included in Clause 38. No doubt we will return to it in Committee.
The noble and learned Lord and the noble Baroness, Lady Mallalieu, referred to the service of the prosecution case. I mentioned it in part, but in summary trials the accused will not have as much information about the prosecution case as in Crown Court trials. But he is not required to make disclosure and there is no sanction by means of inference at trial. The noble and learned Lord, Lord Ackner, referred to sanctions for departure from the defence case. The Bill provides that if the accused departs from his defence statement, an inference may be drawn but the court must have regard to the reasons for such a departure.
My noble friends Lord Alexander of Weedon and Lord Campbell of Alloway referred to the discretion of the prosecutor to make further disclosure than is required. The Bill does not prevent the prosecution going further than is required under Part I, but I am not sure what circumstances would justify the prosecution wanting to show the accused all the material the police have gathered. I do not see how it would improve the current arrangements. After all, the prosecutor is under an obligation to make available all material which, in his opinion, could undermine his case and also to make available to the defence material which could support the defendant's case, as disclosed. The prosecutor is required to certify that both obligations have been met.
My noble friend Lord Campbell of Alloway referred to Part II, the code of practice, and parliamentary procedure. The code is not subject to any particular parliamentary procedure, because unlike the police and criminal evidence codes of practice, for example, it is purely procedural. However, of course, we will await what the scrutiny committee has to say and consider it carefully.
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