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The Lord Chancellor (Lord Mackay of Clashfern): My Lords, if Amendment No. 1 is agreed to I cannot call Amendments Nos. 2 and 3.

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Lord McIntosh of Haringey moved Amendment No. 1:

Page 1, line 8, leave out from ("applies") to end of line 20 and insert ("to--
(a) an indictable offence, or
(b) a summary offence.").

The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendments Nos. 11, 13, 21, 41, 43 and 95. The amendments are complicated, not because the idea behind them is complicated but because the structure of the Bill is complicated. The draftsman has chosen to take Part I of the Bill and divide it between those cases which are considered in magistrates' courts and those which are considered in the Crown Courts. There is nothing wrong with that. However, it means that when we try to make provision for cases which are summary offences, those which are triable--I am perfectly happy to continue when the House is prepared to be a little more silent. I was referring to those cases which can be treated either as summary offences or taken in the Crown Court and those which are indictable offences. Therefore everything that we say applying to all four aspects has to be provided in all parts of the Bill. There are separate provisions for those aged under 18 and those aged 18 and over.

The purpose behind the amendments is simple. It is to change the provision in the Bill that revelation of the case by the investigators to the prosecution and disclosure by the prosecution to the defence is triggered only when a plea of not guilty has been entered. The argument for the provision in the Bill is that there will be less work for the investigator--the police--and for the prosecutor if there is a reduction in the number of cases in which primary disclosure by the prosecution is required. That is an admirable objective. It is one with which we do not disagree. We, like the Government, wish to reduce the amount of work, and unnecessary work, for the police and prosecution.

However, we fear that the objective will not be achieved. That is reflected in the amendments. We have been in discussion with the Criminal Law Committee of the Law Society. The Government know that it is concerned about the provisions in the Bill in this respect. That body has authorised me to say that the advice which it would give to its members if the Bill were passed unamended is this: if there is any question about the adequacy of the prosecution case the client should be advised to plead not guilty in order to gain access to the prosecution case and in order that the case should be revealed by the investigators to the prosecution. That does not merely undo the possible savings which might otherwise occur as regards work for the police and investigators. It will clog up the courts. There will be a larger number of not guilty cases which may prove to be unfounded. Indeed, under those marginal circumstances they are likely to prove to be unfounded. The result will be the opposite of that which the Government anticipate in producing this formulation.

I assure the House that it is in a spirit of seeking to make the Bill work better rather than to change in any significant way the balance between prosecution and defence that we put forward the amendments. They are

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designed to avoid the danger of tactical not guilty pleas which we and many of those most involved in those cases in the courts fear will be the result of the Government's proposals.

At Committee stage we put forward amendments along the same lines although by no means in the same words. One of the Government's answers was that they would create problems of timing for the primary disclosure by the prosecution and that that would in itself cause delays and anomalies. I believe that these amendments take account of those objections and that the remaining objections put forward by the Government to the thrust of the amendments are of little value and do not override the primary purpose of the amendments and the need for such provisions in the Bill if the measures--we welcome them and want them to work--are actually to work. I beg to move.

3.45 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I must tell the House that there are serious defects with the amendments. Amendment No. 1 to Clause 1 states that Part I applies to an indictable offence or a summary offence. Because the only two kinds of offences are indictable offences and summary offences, this in effect says that Part I applies to an offence. As it stands I am afraid the amendment is meaningless. It may be intended to mean that Part I applies where an offence has been committed; or where an offence is being investigated; or where proceedings for an offence have been instituted. But the amendment does not say any of those things. And if it is concerned with the commencement of Part I, we have already catered for that in Clause 1(3) which states that Part I applies in relation to alleged offences into which no criminal investigation has begun before the appointed day.

The noble Lord appears to recognise that Part I must contain the wording of what is now Clause 1(1) and (2) because he reproduces it in Amendment No. 11 to Clause 4. It provides that the requirement to give the accused a schedule of unused material under Clause 4 applies where there is a summary trial and the accused pleads not guilty, or where the proceedings are transferred to the Crown Court. That is the effect of the Bill as it stands, without the amendments.

I should point out another effect of Amendment No. 11. That is that the prosecutor would be under no duty to make primary prosecution disclosure under Clause 3 until the accused pleads not guilty at a summary trial or the proceedings are transferred. That is because Clause 4 provides for the prosecutor to give the accused the schedule at the same time that he makes primary prosecution disclosure, and under Amendment No. 11 the prosecutor is under no duty to give the schedule until a not guilty plea is entered at a summary trial or the proceedings are transferred.

Amendments Nos. 13 and 21 to Clauses 5 and 6 have the effect of confining Clause 5 to cases where proceedings are transferred to the Crown Court and applying Clause 6 in all other circumstances. Again, this preserves the effect of the provisions which the

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amendments replace and is presumably intended to be consequential on Amendment No. 1 to Clause 1. But, as I have explained, that amendment is completely ineffective.

I turn now to Amendments Nos. 41 and 43 to Clause 14. At present, Clause 14 disapplies the common law rules on disclosure (except those about whether disclosure is in the public interest) which were effective immediately before Part I of the Bill was implemented and which relate to things done after the relevant time. The amendments would re-define the relevant time for the purposes of Clause 14. Instead of tying it in to the time when the accused pleads not guilty at a summary trial, which is the trigger for prosecution disclosure elsewhere in the Bill, the relevant time would be when the accused is charged.

Let me explain what this means. Part I as a whole applies in relation to any offence into which a criminal investigation begins on or after the day on which Part I is brought into force. The duties of disclosure imposed on the prosecution under Part I apply to such offences from the point at which the accused pleads not guilty at a summary trial or the proceedings are transferred to the Crown Court. Under Clause 14, as drafted, the common law duties of disclosure, which are superseded by the Bill, end at the same point as the new statutory duties begin. There is accordingly a clean break between the two. Under these amendments, in relation to summary trials, the common law duties of disclosure end when a person is charged with an offence. There is then a gap between charge and a not guilty plea at the trial when neither the existing common law rules nor the statutory rules will apply. This may not have any effect in practice, but I do not see why there should be any gap at all.

Also, the effect of the amendments is to disapply the common law rules in relation to cases where either the accused is charged or the proceedings are transferred. But in all cases where disclosure is made, whether the proceedings are transferred, the accused will already have been charged. The effect of Amendment No. 41 would therefore be to render Amendment No. 43 completely unnecessary. It could only give rise to problems of interpretation for the courts, which would have to ask themselves why Parliament had included a specific reference to proceedings being transferred when it had no actual effect in practice.

Finally, I turn to Amendment No. 95, which amends Clause 40. At present, Clause 40 in effect requires magistrates' courts to invite a defendant charged with an offence triable either way to enter an indication of plea before the court considers which mode of trial (summary or indictable) is suitable. The purpose of Amendment No. 95 is to restrict the operation of the new provision to cases where the prosecutor has made primary prosecution disclosure under Clause 3 of the Bill. Accordingly, the accused would not have to give an indication until he knew what the prosecutor thought might undermine the prosecution case. But the effect of Clause 1 of the Bill as it stands is that the prosecutor is under no duty to make primary prosecution disclosure

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in summary trials until after the accused has pleaded not guilty. And, as I have explained, that is also the effect of Amendment No. 11 to Clause 4.

When we debated similar amendments in Committee, I explained why the duty of prosecution disclosure should not arise in summary trials until after the defendant had pleaded not guilty. If the prosecutor had to make disclosure before the accused had indicated his plea, he would be put to a great deal of work to no useful purpose in the very many cases where the accused intended to plead guilty all along. This additional burden in the generality of cases would far outweigh the benefit to be gained in borderline cases where the knowledge of what the prosecutor thought might undermine the prosecution case was sufficient to persuade an accused to plead guilty when he might otherwise have pleaded not guilty.

For all those reasons, I invite the House not to accept the amendments.

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