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Baroness Blatch: Amendment No. 31 would expand Clause 7(2)(a) so that the prosecutor was required to disclose to the accused any prosecution material which had not previously been disclosed to the accused, and might be reasonably expected to assist his defence as disclosed by the defence statement, and could be seen on a sensible appraisal by the prosecution to be relevant, or possibly relevant, to an issue in the case, or which raised, or possibly raised, a new issue whose existence was not apparent from the evidence the prosecution

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intended to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue.

As the amendment is drafted, the prosecutor is not required to disclose material unless it satisfies all three elements. This is because the amendment is introduced with the word "and" rather than "or". Because the existing test in (ii) is more restrictive than the new test in (iii), material which may be relevant but which does not assist the defence will not need to be disclosed. The same is true of Amendment No. 36 in relation to the description of prosecution material which the accused may apply to have disclosed.

Amendment No. 44 differs from the other two in beginning with the word "or" rather than "and". It has the effect of creating two separate conditions for the test of prosecution disclosure under the continuing duty in Clause 9. If either condition is satisfied--if the material may reasonably assist the defence or may be relevant or raise a new issue--the prosecutor will be required to disclose it. This considerably widens the test for prosecution disclosure in the circumstances in which Clause 9 applies. I think this is what the noble Lords want to achieve in relation to Clauses 7 and 8 also. Of course, it is not achieved by those amendments. If that is their intention there are problems with that. The test of relevance to an issue in the case is considerably wider than the tests for prosecution disclosure currently in the Bill. The prosecutor would be required to disclose considerably more material than had been disclosed to the accused by way of primary prosecution disclosure under Clause 3. As the Bill is currently drafted, the accused receives the bulk of prosecution disclosure before he makes defence disclosure. If the amendments had their intended effect, he would receive the bulk after defence disclosure rather than before.

Furthermore, the new test is the same as the current test for prosecution disclosure as set out by the Court of Appeal in the 1994 case of R. v. Keane. It requires the prosecutor to disclose in effect all material relevant to an issue in the case, whether or not it has any bearing on the defence actually chosen by the accused. As I explained earlier in the debate on the amendments to Clause 3 tabled by the noble Lord, Lord Airedale, this imposes heavy burdens on the police and prosecution relating to the disclosure of material which may be completely irrelevant to the actual defence. In the light of this, I hope that the noble Lord will agree to withdraw the amendments.

Lord McIntosh of Haringey: The Minister has given a very strange answer. We were told in reply to earlier amendments that the risk we ran in expanding primary disclosure by the prosecution was that there would be no point in secondary disclosure because everything would have been disclosed at the first stage. We are now told that to expand secondary disclosure will, in some sense that is not understood, endanger primary disclosure. I do not believe that the two can possibly be made to fit together.

As was recognised by your Lordships in a wide-ranging debate, with a lot of well-informed contributions, primary prosecution disclosure and

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defence disclosure should, as far as possible, be balanced. We did not agree about how they should be balanced, whether they should be balanced by placing increasing burdens on the prosecution to match the burdens on the defence, or whether the burdens on the defence should be reduced to match the prosecution. That is a matter which remains for discussion.

The issue of secondary prosecution disclosure is closely related to the two issues that we have already discussed and are themselves inextricably linked. Surely it is necessary to have a wider definition of what is relevant at the secondary disclosure stage, if only because at that stage it is more apparent both to the defence and the prosecution, because of the nature of the disclosures that have already taken place, what is relevant. Yet, curiously, there is very little change in the definitions of what is relevant and what should be disclosed. The Bill provides that the criteria are the material which the prosecution consider undermines its case, which comes from the primary prosecution disclosure, and the material which the prosecution consider may assist the defence case, which the noble Lord, Lord Campbell of Alloway, thought was not different in any significant way from the first criterion.

What is proposed here is nothing very dramatic. We say that things may happen both in the understanding of the defence and prosecution and the development of investigations, or understanding of the relationship between one investigation and other investigations. To that degree, it means that the criteria should be more relaxed. We do not propose to put in dreadfully revolutionary words. They are the words used by the Lord Chief Justice himself in the case of Keane.

I acknowledge that technically the Minister has a point in suggesting that we should have used the word "or" rather than "and" in the first two amendments. On that basis, I do not propose to press the three amendments in this group to a Division. However, the point is still valid and is related to the earlier discussions which it has been agreed will take place. I hope that those discussions will be widened to consider the criteria for secondary prosecution disclosure as well as the earlier matters that are now on the table. On that basis, I beg leave to withdraw Amendment No. 31.

Amendment, by leave, withdrawn.

Baroness Mallalieu moved Amendment No. 32:

Page 5, line 36, at end insert--
("( ) The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see.").

The noble Baroness said: Amendment No. 32 seeks to insert a discretion into Clause 7, which deals with secondary disclosure by the prosecution. Having dealt with the situation in which the prosecutor must make disclosure, the amendment inserts in sub-paragraph (iii):

    "The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see."

I make clear to the noble Baroness that this is in the nature of a probing amendment. I preface my remarks by saying that the amendment is prompted at the

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particular request and as a result of very strong representations made to me by senior members of the Bar who prosecute in serious criminal cases.

There is acute concern that this piece of legislation, as presently drafted, may have the opposite effect of what is intended. Instead of releasing the Crown from the burden of much of the disclosure which they are presently required to make, prosecutors may find themselves saddled with a different burden which will adversely affect their ability to prosecute cases to proper conviction. What they are required to do is to look at the unused material at the time of primary disclosure, after the defence statement, and then, as I understand it, throughout the trial from the defence point of view.

A prosecutor will have to keep the unused material under constant review to ensure that nothing which assists the defence is withheld during the course of the trial. That task will, in many serious criminal cases, be a vast one. It is almost standard practice now in an investigation which, for example, concerns a murder, for a large number of statements to be taken initially from witnesses that ultimately are never used by the Crown. There may be many thousands of pages of unused material consisting of both statements and exhibits. The prosecution in a murder case in which a number of different people are accused--and this is an everyday occurrence at the Central Criminal Court and other major court centres--may as a result of the defence statement under those provisions have to keep in mind a number of different defences.

Perhaps I may give a hypothetical illustration. In a murder case in which there are five separate defendants, a killing may have resulted from a fight. One defendant may have served a defence statement indicating an alibi as his defence; another, self-defence; a third that he was present but did nothing; a fourth that he was present and involved in the fight but lacked any knowledge of a weapon which had been used by someone else to inflict the fatal injury; and the fifth may even indicate provocation. It may be that when the prosecutor looks through the unused material at the time of primary disclosure, he sees nothing in it which, in his view, helps him; and nothing in it, so far as he can see, which helps the defence either. The course that he may well wish to adopt, and which is done day in day out at present in criminal trials, is to say to the defence: "You may see anything you wish. You may make an appointment at the police station where you will be shown into a room where the exhibits are by the officer". That happens day after day. Junior counsel and solicitors, one or the other, visit the station by appointment and sit reading through the material. If anything is required in the way of a copy, then it can be done at the expense of the defence.

If the prosecutor takes that course now and takes it following this Bill reaching the statute book, he will know that he cannot later be accused of failure to disclose. He cannot later be accused of having missed something. He cannot face a successful appeal later on the basis of non-disclosure, when a proper conviction may be overturned. Above all, he will not have to keep taking his eye off the ball when he is prosecuting the case; in other words, constantly trying to review the case and the evidence from the point of view of the defence.

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He may take that course; and, indeed, does so at present. He must be able to take that course, if he sees fit, when this legislation reaches the statute book.

I said that it is a probing amendment. It raises a matter which should possibly appear in the Bill both at the stage of primary disclosure and, as I indicated in the amendment, at the stage of secondary disclosure; or the noble Baroness might consider enshrining that discretion in the code of practice in paragraph 10.1.

At Second Reading of the Bill, I and other noble Lords sought reassurance from the Minister that prosecuting counsel would retain a discretion at both those stages to let the defence have access to additional material, if they chose to do so. When the noble Baroness dealt with the matter at Second Reading (at col. 505 of Hansard for 27th November 1995), her reply was:

    "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".

I should like to see that discretion enshrined either in the Bill or, at the very least, in the code of practice rather than leaving it to prosecution counsel to trawl through the pages of Hansard for guidance in situations like the one I have outlined. It would be an irony if a Bill, which was born of a desire to help the prosecution avoid burdens of disclosure about which the police, quite understandably, were complaining, resulted in the substitution of a burden on the prosecution which adversely affected their ability to conduct prosecution cases effectively and efficiently.

To prosecute a case of the nature that I have indicated--by no means an unusual occurrence--usually means that the Crown may have a junior counsel to assist; each of the defence is likely to be separately represented, often with two counsel. Each of those pairs of counsel have nothing to do but to devote their attention to their individual client, while the prosecutor has to prosecute a number of different cases. To require him to do so, as this legislation does at the moment, without making it clear that there is a way in which he can ease his burden, is to place a burden on him which can only distract him from doing his job; that is, in essence, to prosecute the case.

I ask the noble Baroness to say that the discretion, which she kindly indicated on Second Reading would remain, can be enshrined in some part of the Bill, either on the face of the statute or in the code of practice. I beg to move.

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