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Viscount Bledisloe: My Lords, with respect, this amendment seems very curious. It seeks to insert into subsection (4)(b) the words "or not". The paragraph would then read:


The amendment does not seek to insert those words into subsection (4)(a), making it read:


    "whether a person should be charged with an offence or not".

It seems very curious to have the words "or not" so that once that the person has been charged the police have to think whether he is guilty or not but, when he has not been charged, the police do not have to bother to think about that but only about whether to charge him. If we are to have even-handedness, we should have even-handedness between paragraphs (a) and (b).

Lord Mackay of Drumadoon: My Lords, as my noble friend Lady Blatch indicated in Committee, the Government's view is that these amendments are unnecessary. That is a view clearly supported in the House today by my noble friends Lord Renton and Lord Campbell of Alloway.

The amendments are unnecessary because the process of considering whether a person is guilty of an offence must necessarily involve considering whether he is not guilty. In my submission, it would be a very different matter if the Bill as framed defined a criminal investigation in terms of ascertaining or determining that a person was guilty of an offence rather than whether he was guilty.

Perhaps the most forceful point that can be made in response to the amendments arises from the issue raised by the noble Lord, Lord Rodgers of Quarry Bank. Inquiry has been made since the matter was before your Lordships in Committee. The precedent adopted in the amendment is one that has been used in the past; for example, in Section 7(1) of the Road Traffic Act 1988 and Section 31(1) of the Transport and Works Act 1992. Both those sections are framed in terms of "an investigation into whether a person has committed an offence". The words "or not" are not used in either section. If the Bill were to be amended in the way suggested by the noble Lord, it might cast doubt on the interpretation of similar provisions, such as those I have quoted, were those to be the subject of construction before a court of law.

For all those reasons, I invite the noble Lord to withdraw his amendment.

Lord McIntosh of Haringey: My Lords, I did not claim that the amendment was a simplifying amendment. It adds words. It adds only two words but it does add words to the Bill. I said that it was a drafting point and the noble Lord, Lord Rodgers disagreed.

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I remind him that he said in Committee that it was a higher drafting point. Therefore, perhaps we are not so far apart as might appear.

I am grateful to the noble and learned Lord the Lord Advocate for seeking to do what the Minister undertook to do in Committee when challenged; namely, to look for precedent for the use of the word "guilty" without the words "or not" added. It must have taken a great deal of research to find a rather pathetic couple of road traffic (or whatever) Bills which have nothing to do with the operation of the system of criminal justice. If I ask the Minister now to tell me before Third Reading whether there are any examples to the contrary--in other words examples of legislation having been drafted with the words "or not"--we can perhaps see what he comes up with. I rather suspect that there will be many more examples. It is not just in legislation but in the courts where the equal weight implied by the words "guilty or not guilty" are so well known, so well established, and so valuable a part of our criminal procedure. It is important that everybody concerned should be in no doubt about the equal weight given to the two possibilities.

The noble Viscount, Lord Bledisloe queried whether the words "or not" should apply in other places as well. That may be so. I must remind the House that we are not talking so much about the wording of Clause 1 itself but the effect of Clause 1 as the trigger for primary disclosure by the prosecution to the defence. That is the fundamental issue which determines the range of material revealed by the police to the prosecutor and disclosed by the prosecutor to the accused. That is the true importance of being sure that the police and the prosecutor work in an even-handed way to make sure that what they produce is not distorted by any misunderstanding of the balance of emphasis which ought to be required in legislation.

I do not believe that I am wrong. I think that if the noble and learned Lord the Lord Advocate pursues his researches he will find sufficient and perhaps more relevant examples of the use of the wording that I propose. Clearly, this is not a matter on which I shall seek the opinion of the House on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [General interpretation]:

Lord McIntosh of Haringey moved Amendment No. 5:


Page 2, line 15, at end insert--
("( ) References to inspection are to inspecting and examining, whether by the accused, his legal representative or an expert instructed by them.").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 6, which occurs at the same place in the Bill. This may only be a probing amendment. I am not sure. It depends on what Ministers say in response. But as we read the Bill it does not require the investigator to allow the prosecutor to have access to the material which has been revealed to him as well as being told about it; and it does require the prosecutor to allow the defence to examine

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material as well as being told about it. Therefore, we seek to clarify the references to the words "inspect" and "reveal".

I remind the House that the word "reveal" was introduced in government amendments only at Committee stage. So we are in a state of some flux about the wording to be used in the Bill. We suggest that further points of provision in Clause 2, which, after all, is a clause of general interpretation, would be helpful in making sure that inspection includes examination as well as inspection and that revelation includes inspection as well as providing a copy. We believe that those precautions are necessary to make sure that revelation and disclosure are as complete and even-handed as possible. If there is any doubt, we should wish that doubt to be removed. I very much hope--indeed, I expect--that the Minister will be able to allay our fears. I gladly give way to the noble Lord.

Lord Renton: My Lords, before the noble Lord sits down, I wonder whether he would be so good as to help us by letting us know where the word "revealing" comes later in the Bill. I have been looking for it and although my eyesight is fairly acute, I have not yet come across it.

4.30 p.m.

Lord McIntosh of Haringey: My Lords, if the noble Lord, Lord Renton, looks back at the amendment moved in Committee by the Government he will find that a whole series of amendments contained the word "disclosed" which was previously used for the transmission of information from the investigator to the prosecution. That is replaced on a number of occasions--I do not have them all at my fingertips--by the word "revealed".

It was explained by the Minister that no change in meaning was intended by the switch from "disclosed" to "revealed". The intention was to make a distinction in wording between those two stages of the process. I do not remember on how many occasions the change occurred. There may have been half-a-dozen or so cases of the word "revealed" which is why it is appropriate for a general interpretation clause to include a more precise exposition of what the word means.

Lord Renton: My Lords, perhaps I may now express my humble view on the two amendments. I do not believe that Amendment No. 5 is necessary. The word "inspection" in the context in which it is used in the Bill does not need elaboration in the way proposed by the amendment. An inspection is an inspection, whether it is done on behalf of the accused, the prosecution, a legal representative or anybody else. There must be precedent for that in this branch of the law.

In relation to the word "revealed", I confess that I am handicapped. As the noble Lord said, I was not able to be present at the Committee stage and, in glancing--admittedly rather quickly--through the pages of the Bill, I have not come across the word "revealed". However, I assume that the different contexts in which that expression is used will be enough to disclose what the word means. Again, I should not have thought that Amendment No. 6 was necessary.

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Lord Campbell of Alloway: My Lords, I take a rather different view to that of my noble friend Lord Renton. I wholly support the spirit in which the amendments are tabled, if only to seek the assurance that neither is necessary. I hope that the spirit of the amendments, which I support 100 per cent., will be the subject of an assurance from my noble and learned friend the Minister. The noble Lord, Lord McIntosh, has done the House a service by tabling the amendments.

Lord Williams of Mostyn: My Lords, I support the amendments essentially on the basis specified by the noble Lord, Lord Campbell of Alloway. This is a matter of great significance in the conduct of criminal trials and in particular in their preparation by those who represent defendants.

As the noble Lord, Lord Campbell of Alloway, said, we do not necessarily ask that the Government accept the amendments. We will be satisfied with an absolute assurance that "inspection" means more than the bare word implies. Perhaps I can give one or two examples with which we are all familiar in practice. Increasingly, prosecutors rely on DNA evidence. A defendant must have the prerogative, as of legal right, to have examinations carried out rather than simply the bare "inspection" implied in the present word. Handwriting samples may need to be tested; blood samples may need to be tested. As we all know too well and too sadly from recent cases, documents may be tested by ESDA. All those matters ought to be available as of right on disclosure. If the Minister is able to say that that will always obtain, our fears will be put to rest. They are not idle fears in the context of what we know about the reliance sometimes placed on detailed examinations as well as cursory inspections of documents, samples and exhibits.


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