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Baroness Blatch: I can understand why Members of the Committee tabled these amendments. On the face of it, the sanctions in Clause 10 appear to be rather one-sided. An inference may be drawn if the accused fails to comply with the requirements of defence disclosure in several respects, but no inference may be drawn from any failure by the prosecutor. I shall try to explain why the provisions in Clause 10 are as they are.

The Royal Commission on Criminal Justice recommended that the accused should be required to disclose information about his case. It foresaw the possibility of the accused attempting to evade the requirement in some way. And so it recommended sanctions in the form of the drawing of inferences in certain circumstances. Those were putting forward a defence at trial without giving any indication in advance; or relying on a different defence at trial from the one disclosed earlier; or disclosing in advance a number of inconsistent defences (recommendation 136). The Government accepted that recommendation, and Clause 10(1)(a), (c) and (d) gives effect to it. These amendments depart from the Royal Commission in applying sub-paragraphs (a) and (d) to both parties to the proceedings, and removing sub-paragraph (c) altogether.

In relation to sub-paragraph (c), the effect of removing it is that it will be open to the accused to set out any number of inconsistent defences in a defence statement, so as to trigger the maximum possible disclosure of additional material by the prosecutor, whether or not he intends to rely on any of those defences, and to do so without any sanction. The Royal Commission disapproved of that abuse and so do we. The noble Baroness will correct me if I am wrong, but I seem to recall the noble Lord, Lord McIntosh, saying on an earlier occasion, during the debate on the humble Address, that in so far as the Bill followed the Royal Commission it would have his support.

In relation to the other amendments, the Bill does not provide for an inference to be drawn if the prosecutor fails to serve any information about the prosecution case, or serves information late, or departs from his case. There are good reasons for that. The prosecutor is already required to serve a notice of the prosecution case or a notice of transfer under existing statutory provisions. If he does not do so, two consequences follow. One is that the accused is not required to make defence disclosure in Crown Court cases at all, and no

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inference can be drawn. That is the effect of Clause 5(1)(c). The second, and more likely, consequence is that the case will not be allowed to proceed. Similarly, if the prosecutor serves the information late--that is, has not done so before the appropriate time for defence disclosure--the accused is not required to give a defence statement. That is because the time limits for these procedures will link defence disclosure to the disclosure of unused material by the prosecutor rather than to the service of the prosecution case. The prosecutor will need to ensure that he complies with the other statutory requirements in relation to the service of his case in good time.

The position is a little different in relation to a departure from the prosecution case. In the light of new information after pre-trial disclosure has taken place, the case for the prosecution may change. If there is new evidence against the accused, the prosecutor is under a separate and long-standing duty under the existing law to serve it on the accused so that he is not taken by surprise at trial. If the prosecutor does not do that, the accused may apply for an adjournment. If there is new prosecution evidence or a change in the prosecution case, the defence case may change. But the Bill already caters for that in Clause 10(4), by requiring the court to have regard to the extent of the difference from the defence statement and the reason for it, before deciding whether to comment or draw an inference. If the change is a consequence of something done by the prosecution, it is unlikely that the court will allow an inference to be drawn. On the other hand, if the change results simply from a desire by the accused to surprise the prosecution, and the prosecution case itself has not changed, it is more likely that the court will allow an inference to be drawn.

I have spoken at some length to the amendments and hope that, in the light of that lengthy explanation, the amendments will not be pressed.

Baroness Mallalieu: Before the noble Baroness completes her response, can she say what is the sanction under the Bill as presently drafted if the Crown departs at trial from the case that is set out in its case statement? I cannot see any such sanction, despite what the noble Baroness indicated.

Baroness Blatch: I mentioned some of the sanctions, though they are not sanctions as such. For instance, the case may be adjourned or it may be abandoned; the defence can challenge as to why the case departed from the statement and why the prosecution is not following the lines it set out in its statement of case. I gave some arguments against it. Perhaps the noble Baroness will read what I said, just as I shall read carefully what she said. If necessary we can return to the matter.

Baroness Mallalieu: I shall certainly read what was said and I am grateful to the noble Baroness for indicating that she will look at what was said on this side also. As presently drafted, as the Minister conceded when she began to deal with this series of amendments, the clause appears to be one-sided. I am not entirely satisfied that what she said allays my fears. However, I

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shall look at it and return to the matter in due course if the noble Baroness does not. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 and 49 not moved.]

9 p.m.

Baroness Blatch moved Amendment No. 50:

Page 7, line 42, leave out ("specified period") and insert ("period mentioned in section 5(7)").

On Question, amendment agreed to.

[Amendments Nos. 51 and 52 not moved.]

Baroness Blatch moved Amendment No. 53:

Page 8, line 12, leave out ("specified period") and insert ("period mentioned in section 6(3)").

On Question, amendment agreed to.

Baroness Mallalieu moved Amendment No. 54:

Page 8, line 24, after second ("court") insert ("following the making of an application made in the absence of the jury").

The noble Baroness said: The purpose of this amendment is to set out what shall happen when a party makes an application to the court for leave to comment adversely in the circumstances set out in Clause 10. The words which it is sought to insert in Clause 10(3)(a) are,

    "following the making of an application made in the absence of the jury".

If such an application were to be made by the Crown to comment adversely on, for example, a change of tack in the defence case and that application were to be made in the presence of the jury, but to be rejected by the court, then clearly prejudice would result which might well result in the trial itself being aborted. So all this amendment seeks to do is to clarify the procedure that is to be followed whenever there is a suggestion that any other party, as opposed to the court itself, will either wish to comment or seek to draw inferences in the course of the trial. I beg to move.

Baroness Blatch: I am not sure that this amendment achieves the intended effect. Let us examine what will happen in practice. The accused will advance a defence in court which is different from a defence in the defence statement. After he has finished, the prosecutor will turn to the judge and ask for the jury to be sent out. Some time later the jury will return. Either the trial will carry on as if nothing had happened or the first thing the prosecutor will do will be to comment adversely on the fault in disclosure by the accused. It will not be very long before juries realise that they are being sent out because the prosecutor intends to seek permission to comment on such a fault. They will know that there has been some fault in disclosure by the accused, which they are not allowed to know about. It is not difficult to imagine the subconscious effect on the jury as they ponder their verdict. This would defeat the purpose of the amendment.

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In my view it would be better for the prosecutor to comment in open court and for the judge to direct the jury in his summing-up about the inference they may properly draw. That seems to be fairer to the accused than the consequence of this amendment.

Baroness Mallalieu: I do not know whether the noble Baroness and I are at cross-purposes. She indicated, as the subsection does, that it will be necessary for the prosecutor to seek the leave of the judge before making any comment and indicated that a prosecutor would ask for the jury to go out, in following my amendment. I am bound to say that I would have thought that most prosecutors would have taken that course any way, given the likely prejudice that will result if the application is heard in front of the jury. However, it seems to us to be worth while making it plain on the face of the statute that that is the procedure.

It is of course right that when juries are sent out they quickly become aware that matters of law are being dealt with. It is abundantly clear that many juries are aware that matters of admissibility of evidence, for example, are being dealt with. There seems to be no way around that. I cannot believe that it is right, in effect, to place the matter in front of the jury at the outset when prejudice is certain, rather than to say that it will be possible for them to speculate if they are kept out while the legal argument takes place.

The normal rule is that matters of law are for the judge. When those have to be dealt with, and if there is any prospect of the jury's view of the facts being contaminated by the argument, the jury go out. All that we seek to do with this amendment is to state on the face of the statute that that will be the normal procedure in dealing with what is in effect a matter of law for the judge to determine--in other words, whether the circumstances of this case mean that the provisions of Clause 10 and the adverse comment should be permitted. When the noble Baroness comes to look at what I have said, I hope she will feel that there is some merit in the suggestion I make. With that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 and 56 not moved.]

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