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Viscount Runciman of Doxford: I thank the noble and learned Lord for voicing those concerns a great deal more eloquently than I was about to do. I should like merely to endorse them. On the basis of what I said earlier, I am not close enough to the detail of what we are discussing this afternoon to do more than ask the Minister to take seriously certain worries which are shared quite widely throughout the Committee.

It is a matter of considerable concern if defence disclosure is to be taken to the point that a defendant is required to set out in detail the reasons why he takes issue with the prosecution point by point. I entirely agree with the noble and learned Lord, Lord Ackner, that to assimilate in that way the criminal to the civil procedure runs a serious risk, in practice, of undermining what is common ground throughout the House--the principles of the burden and standard of proof. That cannot be right.

There is a further matter which will need to be addressed later. I mention it now because it arises directly out of the issues which the noble and learned Lord, Lord Ackner, raised. It is not clear to me--unless there is some passage in the Bill or the amendments with which I am not yet up to speed, so to speak--what prevents the prosecution from varying its case in the light of information obtained from the defence under the proposed requirement on the defence to set out in detail the reasons why issue is taken with the prosecution.

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It seems to me, but here I obviously defer to practitioners with direct experience, that in the great majority of cases the crucial issue is likely to turn, certainly in many serious criminal cases, on the credibility of the witnesses. If the amendment of the noble and learned Lord, Lord Ackner, were acceptable to the Minister, that would meet both the concerns which are certainly shared on this side of the House and the concerns which the Royal Commission had very much in mind in its proposals, not going so far as the Bill does now.

As I said, I should like to thank the noble and learned Lord, Lord Ackner, for what he said, to endorse it and ask the Minister to consider it very seriously.

Baroness Blatch: I preface my response to the amendment by saying that of course I want to take away what has been said during the course of the debate and study it very carefully. But, as has been said, there is already a statutory requirement to supply certain information about the prosecution case. In respect of either way offences, the Magistrates' Courts (Advance Information) Rules 1985 require the prosecutor to provide either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings before a decision on mode of trial. In Crown Court cases, the prosecution must serve a notice of the prosecution case or a notice of transfer with documents containing the evidence on which the charges are based. Clause 5(2) refers to the provision of that information as a condition which must be met before the accused is required to provide a defence statement.

These amendments would accordingly require the prosecutor to prepare and give the accused an additional document containing information which, in some respects, duplicates what has already been given. I do not believe that it is necessary to provide that additional information in order to enable the accused to comply with the requirements of defence disclosure in Clause 5. It would place an additional and unnecessary burden on the prosecutor, and serve only to delay the delivery of justice.

The content of the prosecution case statement would be the same as in a preparatory hearing. Such a case statement would be required in all cases. But a preparatory hearing is designed only for potentially long or complex cases where the judge believes that substantial benefits might accrue. In those cases the benefits will outweigh the burdens imposed on both sides by the preparatory hearings regime. That cannot be said of the generality of cases.

As I said, I believe that the burden on the prosecution of complying with that requirement in all Crown Court cases, where the prosecutor has already served information about the prosecution case on the accused, would outweigh any benefit to the accused. But, as I have said, I shall take this matter away and read

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carefully what has been said. If we believe that the Bill is not right as presently drafted, I shall reconsider at the next stage.

Viscount Colville of Culross: If the noble Baroness intends to take this matter away, I shall be obliged if she will also consider the practicalities.

Under Clause 5, subsections (3)and (4), the accused has to give a detailed statement. I can envisage--not in the case that needs a preparatory hearing of the complicated kind to which the Minister referred, but in the ordinary straightforward case where it is to be dealt with on a plea and directions hearing--that the prosecution may say that the defence has not indicated the matters with which it takes issue and the reason why it takes issue because it has not known what it must take issue with. We therefore conduct a tiresome hearing which could have been obviated if the prosecution had been a little fuller in setting out what was the prosecution case in the first place and one would not then have to spend a great deal of time on PDHs dealing with something which, in one shape or form, is to be covered either by this amendment or that of my noble and learned friend Lord Ackner.

I shall be grateful if the noble Baroness will look at the practicalities. That process will happen day after day in the Crown Court unless we know exactly what the prosecution has to produce before the defence submits its statement.

Baroness Blatch: First, I repeat my willingness to take the matter away and think about it. However, it is important to distinguish between the words on the page of the amendments we started to discuss before bringing in Amendment No. 23 tabled by the noble and learned Lord, Lord Ackner. Amendment No. 24 imposes the same requirements as the prosecutor in a preparatory hearing. We are now talking about something less prescriptive but more informative. Without prejudice, I shall take the matter away and think about it.

Lord McIntosh of Haringey: This may have been a helpful 22 minutes. I am grateful to the noble and learned Lord, Lord Ackner, for linking his amendment with my three amendments. I had no right to separate them and he is right to say that the subject matter overlaps considerably. I am prepared to be convinced that his wording, apart from being shorter and simpler, is better than mine. I am prepared to be convinced also that it is not appropriate to bring in the wording from Clause 24, as my Amendment No. 24 does, but to use the simpler form of words that he proposed.

I am grateful also to the noble Viscount, Lord Colville. He points out, as the Minister recognises, the interlinking of the requirements for the prosecution and the requirements of the defence in subsection (4) of Clause 5. I shall beg leave to withdraw Amendment No. 21 and shall not move the other linked amendments, but, because of the statements of the Minister, it may be as well for me not to move Amendment No. 26 which seeks to restrict the disclosure obligations of the defence.

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A balance must be kept between the prosecution and the defence. I suspect that the Minister recognises that the present wording does not reflect that balance. It is not prescriptive enough in terms of the prosecution and/or too prescriptive in terms of the defence. It does not achieve the equality of arms for which we are all looking.

I shall take up any opportunity that is available to discuss this matter with the Minister, her colleagues and officials. I am grateful for her offer and for the terms of her reply to the amendment.

Viscount Bledisloe: Before the amendment is withdrawn, perhaps I might suggest--as a person who has worked with crime, though not for a long time--that perhaps subsection (4) is over elaborate for simple cases. The Minister said that these amendments are asking the prosecution to do something complicated which is not necessary in simple cases. Perhaps the answer is that subsection (4) has gone too far for simple cases and one should revert to something more like the passage read out by my noble and learned friend Lord Ackner from the Royal Commission report for those simpler cases. It may be that then both the prosecution and defence could do simple things rather than complicated things in simple cases.

Lord McIntosh of Haringey: I am attracted by that proposition. The noble Viscount said more clearly what I intended to say when I said that I intended to throw Amendment No. 26 back into the melting pot together with the others.

If we are to achieve equality, it is right that we should seek to achieve it with a lower level of disclosure and a greater simplicity rather than by complicating matters on both sides. If that is to be achieved by simplifying the defence disclosure requirements rather than by complicating the prosecution disclosure requirements, that would be an admirable outcome. I am sure that the noble Viscount, Lord Runciman, would agree that that would be closer to the intention of the Royal Commission in its recommendations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Baroness Blatch moved Amendment No. 22:


Page 4, line 7, leave out paragraph (a).

The noble Baroness said: Amendment No. 22 is a minor amendment designed to remove an unnecessary provision in Clause 5(2).

Clause 5 provides that the accused need not make defence disclosure in Crown Court cases until he has been served with some information about the prosecution case under the existing statutory provisions. Subsections (2)(a) to (d) refer to those. If the case is transferred to the Crown Court for trial, the accused will in all cases receive one of the notices described in subsections (2)(b) to (d)--which, as it happens, contain more information than would have been provided under subsection (2)(a). Since Clause 5 only applies where the proceedings have been transferred to the Crown Court,

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and since the provisions described in subsections (2)(b) to (d) apply in all those cases, the reference in subsection (2)(a) to information given before transfer is unnecessary. I beg to move.

On Question, amendment agreed to.


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