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Lord Campbell of Alloway: With respect, would not material known to assist the defence inevitably, as a general rule, undermine the case for the prosecution? If that is right, and although I accept everything that the noble Baroness said about disclosure and its desirability, is it really necessary?

Baroness Blatch: The amendment tabled by the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, but spoken to by the noble Baroness, Lady Mallalieu, would widen the test for prosecution disclosure but in a different way to the amendments tabled by the noble Lord, Lord Airedale. It would require the prosecutor to disclose under Clause 3 not only material that he thought might undermine the prosecution case but also material that he thought might assist the defence case as far as it was known.

Having considered the matter carefully, I do not believe that it would add anything of substance to the current test in the Bill. The amendment would also introduce an element of uncertainty into what is intended to be a clear and ordered scheme for prosecution and defence disclosure. Let us suppose that the accused has indicated to a police officer an explanation for the offence with which he has been charged. That will be passed on to the prosecutor and will tell him something about what the defence case might be. But if that material points away from the accused, it is very likely to undermine the prosecution case and fall within the existing disclosure situation, which I believe was partly the point made by my noble friend Lord Campbell of Alloway.

Alternatively, let us suppose that the prosecutor does not have material of that kind. Under the wider test, if he tries to guess what the defence might be, based on a rumour or second-hand information, he may have to

18 Dec 1995 : Column 1446

disclose all sorts of material which may have no bearing at all on the actual defence. I have to say that I find that both inefficient and unnecessary. The proper means of defence disclosure is a defence statement given under Clause 5 or Clause 6 of the Bill. Until that happens, the prosecutor has no firm indication of what undisclosed material will assist the defence that the accused actually intends to advance. When a defence statement has been given, the prosecutor is then able to assess properly whether he has any undisclosed material which might reasonably assist that defence. I hope that the amendment will not be pressed.

Baroness Mallalieu: I am bound to say that the impetus for this amendment comes from a former senior Treasury counsel prosecuting at the Central Criminal Court. I am concerned because although I fully accept what the noble Lord, Lord Campbell of Alloway, said and that in most cases it will not be difficult for a prosecutor to look at the material and say to himself, "This will undermine my case if the defence see it, and therefore it should be disclosed at the primary stage", there will be other pieces of material where doubt will arise. I have given some instances and I believe that both of us could think of others without great difficulty. Far from being certain as regards the way the clause is presently drafted, in my view it is likely to lead not only to considerable inconsistencies as between one prosecutor and another but also to prosecutors retaining material which might well resolve the issues and, who knows, at the end of the day save a great deal of court time and prevent investigative time as regards the defence from being wasted, most of which is likely to be funded by public funds. I feel that this is a matter of principle. I wish to test the opinion of the Committee.

5.41 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 99.

Division No. 3

CONTENTS

Ackner, L.
Addington, L.
Airedale, L.
Archer of Sandwell, L.
Beaumont of Whitley, L.
Blease, L.
Broadbridge, L.
Carmichael of Kelvingrove, L.
Craig of Radley, L.
Dahrendorf, L.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dormand of Easington, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B. [Teller.]
Geraint, L.
Graham of Edmonton, L. [Teller.]
Grey, E.
Halsbury, E.
Hamwee, B.
Hanworth, V.
Harris of Greenwich, L.
Haskel, L.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hylton-Foster, B.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kennet, L.
Kilbracken, L.
Kirkhill, L.
Longford, E.
Lovell-Davis, L.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L.
Ogmore, L.
Peston, L.
Prys-Davies, L.
Rea, L.
Richard, L.
Rodgers of Quarry Bank, L.
Russell, E.
Seear, B.
Sefton of Garston, L.
Serota, B.
Shepherd, L.
Simon of Glaisdale, L.
Stoddart of Swindon, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Turner of Camden, B.
Whaddon, L.
White, B.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.
Young of Dartington, L.

NOT-CONTENTS

Abinger, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Ashbourne, L.
Belhaven and Stenton, L.
Biddulph, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Borthwick, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Burnham, L.
Butterworth, L.
Cadman, L.
Caithness, E.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Chesham, L. [Teller.]
Clanwilliam, E.
Colwyn, L.
Courtown, E.
Craigavon, V.
Craigmyle, L.
Cumberlege, B.
Dean of Harptree, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Elles, B.
Faithfull, B.
Ferrers, E.
Flather, B.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Gisborough, L.
Goschen, V.
Harding of Petherton, L.
Harmar-Nicholls, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Hooper, B.
Howe, E.
Inchcape, E.
Inglewood, L.
Jeffreys, L.
Kenyon, L.
Kinnoull, E.
Lane of Horsell, L.
Lauderdale, E.
Leigh, L.
Long, V.
Lucas, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Merrivale, L.
Mersey, V.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Moyne, L.
Munster, E.
Murton of Lindisfarne, L.
Nelson, E.
Newall, L.
Orkney, E.
Orr-Ewing, L.
Pearson of Rannoch, L.
Pender, L.
Quinton, L.
Rankeillour, L.
Rees, L.
Rennell, L.
Renwick, L.
Romney, E.
Selborne, E.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathcarron, L.
Strathclyde, L. [Teller.]
Swansea, L.
Thomas of Swynnerton, L.
Vivian, L.
Westbury, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

18 Dec 1995 : Column 1447

5.49 p.m.

Baroness Mallalieu moved Amendment No. 8:

18 Dec 1995 : Column 1448


Page 2, line 25, at end insert ("and (except as may be ordered by the court not to be disclosed) disclose to the accused the written witness statements which have been taken so far by the investigator.").

The noble Baroness said: I fully accept that the wording of this proposed amendment may appear to take matters further than I intend. However, I hope that the noble Baroness will look at the amendment, see the mischief at which it is aimed, and, if it needs some tidying up, will undertake that that should happen.

The purpose of the amendment is to ensure that in summary cases the prosecution must disclose to the accused the evidence which it intends to call before the accused is required to serve a defence statement. At present, in many cases no witness statements are served before the trial in a magistrates' court. Advance information may simply require the service on the accused of a statement of the case but no actual witness statements.

Under the Bill as presently drafted an obligation is placed on the prosecution to disclose statements or material which undermine its case but not those which support it. It would, of course, be a nonsense if a prosecutor chose to follow that course, but that is the course which the Bill as presently drafted appears to indicate.

If the wording appears to oblige the prosecutor to serve all material in his possession, that goes very much further than I intend. However, I hope that the noble Baroness will respond favourably to the need to include some provision in this legislation. If the defence is required to serve a statement, the prosecution should serve on it, or at the very least disclose, those statements which will form its case rather than simply those which undermine the case which it proposes to adduce. I beg to move.


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