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Baroness Blatch: I hope that the only thing that divides the noble Baroness and myself is a misunderstanding about what the Bill provides for. The amendment provides expressly that the prosecutor may disclose prosecution material to the accused if he thinks

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it is in the interests of justice to do so. But there is nothing in the Bill as currently drafted which prevents the prosecutor from doing that and a prosecutor is under a common law duty to secure a fair trial. It is worth recording that the prosecuting counsel, for example, are bound by the Bar's code of conduct which sets out that:


    "Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case".

The code of conduct for Crown prosecutors provides in the introduction that:


    "Fair and effective prosecution is essential to the maintenance of law and order".

In the section headed "General Principles", the code stipulates that:


    "The duty of the CPS is to make sure ... that all relevant facts are given to the court",

and that,


    "Crown prosecutors must be fair".

The Bill sets out only what the prosecutor is specifically required to do for the purposes of this scheme of disclosure. Thus, for all the reasons I have given--an obligation under the Bill to disclose, consistent with the requirements of the Bill and also an obligation to abide by the code by which all the key agents are bound--I believe that the amendment is not necessary. As always, of course, I shall go away and read Hansard carefully following this stage of the Bill.

Baroness Mallalieu: I am in part much reassured by what the noble Baroness has said. Nevertheless, I ask her that when she looks at the draft code of practice--and she indicated again today that it is a draft--to consider whether it ought to be made clear in paragraph 10.1, which deals with the disclosure of the material to the accused, that nothing in the code or in the legislation restricts that ultimate discretion. It would be helpful to those who are practitioners. I am grateful to her and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 33:


Page 6, line 2, leave out ("believes") and insert ("concludes").

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 34 and 35:


Page 6, line 4, leave out ("need") and insert ("must").
Page 6, line 9, leave out from ("section") to end of line 16 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Application by accused for disclosure]:

[Amendment No. 36 not moved.]

8.30 p.m.

Baroness Blatch moved Amendment No. 37:


Page 6, line 28, leave out ("or").

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The noble Baroness said: These are minor amendments designed to ensure that the procedure in Clause 8 under which the accused may apply to the court for the disclosure of additional prosecution material works properly.

Clause 8 provides for the accused to apply to the court for the disclosure of undisclosed prosecution material which he has reasonable cause to believe might reasonably be expected to assist the defence disclosed. Prosecution material is defined in terms of material which is in the possession of the prosecutor or which is in the possession of the police and which the prosecutor has inspected. The definition does not include material which is in the possession of the police and which the prosecutor has chosen not to inspect. But the accused needs to be able to apply to the court in relation to all material which has been retained and which is in the possession of the prosecutor or the police.

The definition of prosecution material in Clause 8 needs to be expanded to cater for this. These two amendments achieve this be referring not only to material which the prosecutor either has in his possession or has been allowed to inspect, but also to material which the prosecutor is entitled to inspect--which encompasses all material retained by the police. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 38:


Page 6, line 28, at end insert--
("( ) which is in the possession of a third party and which may contain information which is relevant to the offence or to the offender or to the surrounding circumstances of the case.").

The noble Lord said: This amendment is relatively straightforward. It is based on the possibility of conflict between a third party and the public interest. Quite a lot of material that is relevant to a case could be in the possession of a third party, and there is a natural tendency for the third party to have an interest in keeping it confidential. The amendment provides that information in the possession of a third party should be disclosed if it is in the third party's possession and the public interest in disclosing it overrides the third party's confidentiality interest.

That may mean that the defence has to inspect the document to assess whether it contains information which is material. This is an addition to the provision in Clause 8(3) for the definition of prosecution material as being that,


    "which is in the prosecutor's possession, or...which he has been allowed to inspect in pursuance of a code operative under Part II"."

I may not in the time available fully have appreciated the nuances of all of the code of practice. If that is the case and I have got this wrong, I apologise. But I have seen nothing in the code of practice that allows the concern expressed in Clause 8(3)(b) to override the third party's confidentiality interest. Clearly, in the interests of justice and the proper prosecution of a criminal case,

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it is important that there should be no let-out on information that is relevant and is in the possession of a third party. I beg to move.

Baroness Blatch: I hope again that there is some misunderstanding. The amendment would require the prosecutor to disclose, on a court order, material in the possession of a third party which he may never have seen. It is not defined as material in his possession or material which he has been allowed to inspect. I simply do not see how or why the prosecutor can be expected to disclose material about which he knows nothing.

Further, if the accused wishes to obtain material held by a third party, a means of doing so already exists. He may apply to the court for a witness summons under Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The third party must attend court and produce any document specified in the summons, although he can apply for the summons to be set aside.

Also, there is something inherently objectionable in defining material held by third parties as prosecution material. This amendment does not define what is meant by a third party, so it presumably includes everyone who is not a party to the proceedings. Why should a doctor, a lawyer or a social worker who have had nothing to do with the prosecution be regarded as possessing material which ranks as prosecution material for these proceedings? Why, for example, should a witness for the defence in other proceedings which have concluded be regarded as possessing material which ranks as prosecution material for these proceedings?

Finally, the House will recall that in the debate at Second Reading I gave notice that the Government intended to bring forward amendments as soon as we could on the whole subject of third party disclosure. That is still our intention. Among other things, we intend to reform the procedures for the accused to obtain material from a third party. In the light of that, I hope that the amendment will not be pressed.

Lord McIntosh of Haringey: Again that is a curious answer. The Minister relies on the definition of the phrase "prosecution material" to suggest that the kind of material to which I refer is not prosecution material. But in replying to the amendment moved earlier by the noble Lord, Lord Airedale, she made it clear that in her view there was nothing significant about prosecution material. The noble Lord wanted different wording but the Minister thought there was nothing sinister in the existing phrase and that it did not mean, as the noble Lord thought, material collected for the purpose of the prosecution. It could be material which is relevant to the case but has not been collected for the purpose of the prosecution.

The Minister also gave examples of what she considered to be material in the possession of a third party. She gave the example of doctors and lawyers. I recognise that there could be examples of conflict between the professional rules of some of those people and the interests of the court. Indeed, I believe this is the issue at the moment between President Clinton and the Senate inquiry into Whitewater, namely, what is confidential information between a lawyer and his client.

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I accept that it will be very difficult to find a form of words which resolves that conflict in all circumstances. Nevertheless, it is a lack in the Bill as drafted that there is no specific provision for access to information that is in the possession of a third party.

I do not believe it is relevant that the prosecutor may not know about the material. If it comes to the ear of the accused that there is material which somebody else holds and which may let him off, even though it is not part of the investigation--it could, for example, be a confession by somebody else in a totally different case--then surely that information, which has not been included in the prosecution material as the Minister defines it, should be available to the defence. I rather suspect that a number of the miscarriages of justice cases that have been overturned in the period running up to and following the Royal Commission rely on precisely that point. Here is material which is relevant to the case but does not fall within the definition prescribed in the Bill.

I am very interested in the Minister's remarks about the 1985 Act and other rules. I shall of course read them very carefully before deciding what to do at a later stage. This is not an issue on which, in the absence of confirmation that is firm on one side or the other, I wish to seek the opinion of the Committee. However, it is an issue that is quite live and deserves further attention. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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