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Baroness Blatch: The noble Lord has me at a disadvantage, in that some considerable thought has been given to these changes. I have no reason to dissent from the system not working well at the moment. I bow to the noble Lord's considerable experience in these matters. Given that we have another stage of the Bill, I invite the Committee to accept the amendment now, and no doubt the noble Lord will return to the issue at a later stage of the Bill.

On Question, amendment agreed to.

On Question, Whether Clause 11, as amended, shall stand part of the Bill?

Lord McIntosh of Haringey: I shall speak briefly on Clause 11 stand part at the behest of the noble Viscount, Lord Colville of Culross, who, I believe, has been in discussions with the Minister on the point to which I am now going to refer. He is concerned that there are many cases before the courts in which the particular case is, or may be, part of a larger inquiry or investigation. At the beginning of the case it may appear that the case is separate from the larger inquiry, but, as investigations proceed, it becomes clear that the inquiry is larger and wider, and that material in the hands of the police may not have been collected as part of the original investigation, but may become relevant to the case as it develops.

The noble Viscount has suggested that there should be amended wording to what I thought I took down as paragraph 7.4 of the code, but I do not believe that that can be right. The wording he suggests is:


The noble Viscount has left to write a summing-up speech in a case now before his court and therefore I am not able to consult him on the detail. The Minister knows of it as a result of the meetings which she has

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had with him. I do not wish to hold up the Committee at this stage but I ask that the Minister gives further consideration to the case which the noble Viscount made to her and considers whether he or she should propose further amendments at a later stage of the Bill.

Baroness Blatch: I am grateful to the noble Lord, Lord McIntosh, for pressing the point on behalf of the noble Viscount, Lord Colville. Not only have we been in correspondence but we have met, and I thought that he was satisfied about the matter.

All material that police have is to be given to the prosecutor and therefore there is no discretion to hold back material. Clause 11 requires the court to keep under review whether it is still not in the public interest to disclose material which it has ordered should not be disclosed. This requirement applies at all times after the court has ordered that it is not in the public interest to disclose certain prosecution material and before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case. If the court at any time no longer believes that it is not in the public interest to disclose material it shall so order. That continuing duty is also a feature of the current law which is preserved by the Bill.

The particular point on which I believe the noble Viscount was satisfied was that of certification. There will be formal certification of the police having handed the material over and of the prosecution handling it in a way that is consistent with the code of practice.

Clause 11, as amended, agreed to.

Clause 12 [Rules of court]:

Baroness Blatch moved Amendment No. 60:


Page 9, line 21, at end insert ("or in relation to an order made under section 11(4) (whether or not in pursuance of an application)").

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Clause 13 agreed to.

Clause 14 [Common law rules as to disclosure]:

[Amendments Nos. 61 and 62 not moved.]

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Williams of Mostyn: Perhaps I may inquire of the Minister what she says the effective consequence of Clause 14(1) will be.

Baroness Blatch: It may be better if I speak to the whole of Clause 14 because I understood that it was to be generally opposed. It provides for common law rules as to disclosure, with one exception, no longer to apply.

The rules of common law which were effective before the appointed day and which relate to the disclosure of material by the prosecutor will no longer apply regarding things falling to be done after the relevant time in relation to an alleged offence; that is, when the accused pleads not guilty in a summary trial or when the proceedings are transferred to the Crown Court.

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However, this does not affect the common law rules as to whether disclosure is in the public interest. These relate to the consideration by the court of different aspects of the public interest in relation to the disclosure of certain information. For example, the court may balance the public interest in not disclosing the identity of a police informant against the public interest in ensuring that the accused receives a fair trial, in considering whether particular material needs to be disclosed.

Members of the Committee opposite do not believe that Clause 14 should stand part of the Bill. If it were removed the existing common law rules on disclosure would continue to apply alongside the statutory scheme created by this Bill. We would then have two disclosure systems; the current, unsatisfactory system, which was roundly condemned by the Royal Commission and which is based on developments in case law which themselves depend on common law rules, and the statutory scheme created by this Bill.

I believe that that would create immense problems for the courts in interpreting the law and for parties to criminal proceedings in applying it. The statutory scheme would generate its own case law, which would run parallel and in conflict with the case law developed under the existing scheme. That would be profoundly unsatisfactory.

Subsection (1) provides for the rules of common law which were effected by the appointed day and which relate to the disclosure of material by the prosecutor no longer to apply regarding things falling to be done after the relevant time in relation to an alleged offence.

Lord Williams of Mostyn: I am grateful to the Minister but perhaps I may repeat my question. What do the Government say is the effective consequence of Clauses 14(1)(a) and (b)? I ask that in particular because, when my noble friend Lady Mallalieu spoke to Amendment No. 32, the Minister was at pains to say that the common law duties of prosecutors relating to disclosure would continue. I believe that she read out the ethical duties of a member of the Bar and the ethical duties of a member of the Crown Prosecution Service. That being so, my inquiry is simple--and I respectfully repeat it. What is specified to be the effective consequence of Clause 14(1)(a) and (b)?

Baroness Blatch: I do not understand the point which the noble Lord is trying to make. Clause 14(1) states:


    "Where this Part applies as regards things falling to be done after the relevant time in relation to an alleged offence, the rules of common law which ... were effective immediately before the appointed day, and ... relate to the disclosure of material by the prosecutor, do not apply as regards things falling to be done after that time in relation to the alleged offence".

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What is the specific point which the noble Lord seeks to make on this issue?

Lord Williams of Mostyn: I am sorry that I have not made myself clear and I am sure that it is my fault. What will be the consequence of Clauses 14(1)(a) and (b)? I cannot make my question more specific.

Baroness Blatch: I am not sure that I can give an answer which will satisfy the noble Lord. Perhaps he will allow me to take away his question and return to it between now and Report stage.

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Lord Williams of Mostyn: Of course, and I am most grateful.

Clause 14 agreed to.

The Earl of Courtown: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at twenty-eight minutes past nine o'clock.



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