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Baroness Blatch moved Amendment No. 108:


Page 16, line 16, leave out from ("with") to end of line 18.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 109:


Page 16, line 19, leave out ("at a preparatory hearing") and insert ("under this section").

The noble Baroness said: In moving Amendment No. 109, I shall speak also to Amendments Nos. 110, 112, 113 and 114.

The amendment inserting a new clause after Clause 24 provides that where a judge has ordered a preparatory hearing he may exercise any of the powers contained in Clause 24(4) to (7) before the preparatory hearing has started. The amendment, which has been prompted by a similar provision in Section 7(3) to (5) of the Criminal Justice Act 1987, would enable the judge to order the

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prosecution and the defence to prepare and serve those documents whose service could otherwise be ordered at the hearing itself. This will allow key documents to be prepared and exchanged before the start of the hearing, which may then be dealt with more expeditiously. Where a judge makes an order before the preparatory hearing, Section 24(4) to (12) will apply accordingly. The effect of this is that orders made before the hearing will be subject to the same provisions in Clause 24 as those made at the hearing. The judge would, for example, in making an order under Clause 24(6) or (7) warn the accused of the possible consequences under Clause 25 of not complying with it.

I turn to the amendment to Clause 24(12). As drafted, Clause 24(12) provides that any order or ruling made by a judge at the preparatory hearing has effect through the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it. The amendment to Clause 24(12) provides that orders made under Clause 24 rather than at the preparatory hearing shall have effect through the trial. This is consequential to the amendment enabling the judge to make certain orders before the hearing. The effect is that an order made before the preparatory hearing will have the same status at the trial as an order made at the preparatory hearing.

Clause 25 governs the consequences of a failure by either party to comply with a requirement imposed at the preparatory hearing or for departing from the case disclosed at the hearing. The amendments to Clause 25 remove the references to "preparatory hearing" and replace them with references to "in pursuance of a requirement imposed under Section 24". They are consequential to the amendment inserting the first new clause after Clause 24, which provides for the judge to make orders under Section 24(4) to (7) before the preparatory hearing. The effect is that the judge may comment, and the jury may draw inferences, from any failure by either party to comply with the requirement of an order made before, as well as at, the preparatory hearing. Similarly, the judge may comment and the jury draw inferences from any departure from the case disclosed before, as well as at, the preparatory hearing. I beg to move.

Baroness Mallalieu: These amendments seem to give greater flexibility to the procedure, and accordingly they have our support.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Baroness Blatch moved Amendments Nos. 110 and 111:


After Clause 24, insert the following new clause--

Orders before preparatory hearing

(".--(1) This section applies where--
(a) a judge orders a preparatory hearing, and
(b) he decides that any order which could be made under section 24(4) to (7) at the hearing should be made before the hearing.
(2) In such a case--

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(a) he may make any such order before the hearing (or at the hearing), and
(b) section 24(4) to (12) shall apply accordingly.").
After Clause 24, insert the following new clause--
Crown Court Rules

(".--(1) Crown Court Rules may provide that except to the extent that disclosure is required--
(a) by rules under section 81 of the Police and Criminal Evidence Act 1984 (expert evidence), or
(b) by section 5(5) of this Act,
anything required to be given by an accused in pursuance of a requirement imposed under section 24 need not disclose who will give evidence.
(2) Crown Court Rules may make provision as to the minimum or maximum time that may be specified under section 24(11).").

On Question, amendments agreed to.

Clause 25 [Later stages of trial]:

Baroness Blatch moved Amendments Nos. 112 to 114:


Page 16, line 22, leave out subsection (1) and insert--
("(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under section 24.").
Page 16, leave out lines 24 to 26 and insert--
("Where--
(a) a party departs from the case he disclosed in pursuance of a requirement imposed under section 24, or
(b) a party fails to comply with such a requirement,").
Page 16, line 36, leave out ("at a preparatory hearing") and insert ("in pursuance of a requirement imposed under section 24").

The noble Baroness said: I beg to move Amendments Nos. 112 to 114 en bloc.

On Question, amendments agreed to.

Baroness Blatch moved Amendment No. 115:


Page 16, line 39, leave out ("person who gave it") and insert ("accused concerned").

The noble Baroness said: Clause 25(4) precludes the disclosure of the accused's written statement provided under Clause 24(6)(a), or any other information relating to the case for the accused which is given in pursuance of a requirement imposed under Clause 24, after the jury has been sworn without the consent of the person who gave it. It is intended that it is only the consent of the accused concerned which is to be obtained under Clause 25(4). The effect of the amendment is to put this beyond doubt.

Baroness Mallalieu: I wonder whether the Minister can help me further as to this part of Clause 25. I do not understand when it is intended to operate. As I understand it, Clause 25 provides for a judge to comment upon, or to allow inferences to be drawn from, or direct the jury in relation to inferences drawn from, a departure from the case disclosed at the preparatory hearing. I appreciate that the amendment introduced by the Minister requires the consent of the accused before the jury hears of the contents of a statement that has been provided at the preparatory hearing. For the moment, I cannot envisage the circumstances in which such a situation will arise. If there has been a departure from the case that the accused has indicated during the preparatory hearing, I am not at all clear why it is that his consent will be required before

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the case that he has indicated is referred to in this way. There may be a very good reason for it; but I shall be grateful for a further explanation.

Baroness Blatch: As I understand it, Clause 25(4) precludes the disclosure of the accused's written statement provided under Clause 24(6)(a), or any other information relating to the case for the accused, given in pursuance of a requirement, as I said when addressing the amendment in the first place. It is my understanding that it is only the accused's consent that is to be obtained under Clause 25(4). The amendment is designed simply to put that issue beyond doubt.

Baroness Mallalieu: I understand that; but I have not understood in what circumstances this issue is likely to arise. It may be that it is not the intention that the jury should, except in particularly specialised circumstances where the accused requires it, ever see the document that is produced by the accused in relation to the preparatory hearing. If that is the intention, I understand what the amendment is intended to get at.

Baroness Blatch: One instance would be where the accused had made a statement and in the course of the trial a request was made for the statement to be used. The accused may, for one reason or another that is entirely personal to him, not wish to use part of that statement in his defence. It is only with the consent of the accused that that information can be used. It would be for the accused to determine whether or not it was made available.

Lord Ackner: I believe that this situation may arise in the situation to which the Royal Commission has referred; namely, the statement may put forward a substantive defence, such as, "I was not there" or, "It was provocation". But, at the end of the prosecution case, the accused may desire to submit that there is no case to answer. That would debar the prosecution from submitting, "You say that there is no case to answer, but you have provided a statement which accepted that there was a case to answer and have put forward a substantive defence". I believe that the Royal Commission, in a part of their report which I am trying to recall, pointed out that that might be somewhat unfair to the accused who ought always to be in a position to submit that there was no case to answer. Therefore, it has been put within the discretion of the judge to decide whether or not the statement of the accused, which the accused does not want put in, should go in. It is a rather strange situation, but I believe it very much follows what the Royal Commission has in mind.


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