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Viscount Runciman of Doxford: My Lords, perhaps I can follow that by expressing my agreement with the importance of this issue and the hope that the Minister will be able to give an assurance. These points were discussed in considerable detail during the deliberations of the Royal Commission and an assurance will be most welcome. I hope that the Minister can give it.

Lord Mackay of Drumadoon: My Lords, perhaps it would be helpful if I began by addressing the request from all sides of the House for an assurance. I can give such an assurance unequivocally. "Inspection" will include examinations of the nature described by the noble Lord, Lord Williams of Mostyn. As he rightly says, increasingly in criminal trials forensic examination of tissue material, documentary material, blood samples and the like is of crucial importance in determining whether or not a man ought to be properly convicted of the charge he faces. Therefore, in seeking to persuade your Lordships that the amendments are unnecessary, I give a clear assurance that "inspection" will include examination by a legal representative, any forensic scientist or other expert instructed to assist an accused man in preparing his defence.

Lord Williams of Mostyn: My Lords, I am grateful for the Minister's response. Am I to understand that that means examination as of right?

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Lord Mackay of Drumadoon: My Lords, yes, subject to the usual provisions for preserving such material so that it can, in the passage of time, be produced in court if production is necessary. There is no question of there being any discretion on the part of the prosecution to grant in some cases but to refuse in others. On that basis, Amendment No. 5 is unnecessary. "Inspection" encompasses examination, and the right of the accused to carry out an inspection encompasses the right to instruct his legal representative or any other expert to deal with the matter on his behalf.

In relation to Amendment No. 6, perhaps I should begin by assisting my noble friend Lord Renton. One finds reference to the term "revealed" in Clause 16(1)(c) and (d) of the Bill. In so far as the amendment is tabled as an amendment to Part I, a technical point may arise but it is not the appropriate part of the Bill in which to make such an addition. However, the main opposition to the amendment is that it is unnecessary.

Under the provisions of Clauses 16 and 17 as presently drafted, the Bill allows for both the prosecutor and the accused to inspect and, in appropriate cases, obtain a copy of any material that can be copied. In particular, in regard to the prosecutor, the code--a draft of which has been available to your Lordships and which is discussed in detail in the provisions of Clause 17--makes specific reference to what is provided in relation to copies being made available. The relevant subsections are (4), (5) and (6).

On the basis of that explanation and, more importantly, the assurances given to your Lordships' House, I hope that the noble Lord, Lord McIntosh, will withdraw the amendment.

Lord Shepherd: My Lords, before the noble and learned Lord sits down, in reply to my noble friend on the Front Bench and whether or not it is a question of right, I thought the Minister said "in some cases". I may be wrong. I thought the Minister made a qualification in terms of whether it was a right. It may simply have been an error, but it seemed to me that the Minister qualified his response. If it is a right, it must be a right without qualification.

Lord Mackay of Drumadoon: My Lords, any confusion is due to my accent rather than the language that I used. No qualification is included in the assurance. My example reinforces the point that there is no question that the right would be available in some instances and not in others.

Lord McIntosh of Haringey: My Lords, I understood the noble and learned Lord the Lord Advocate to say that there was no question of a distinction being applied, and I took that as an absolute assurance.

I am not quite so clear about the noble and learned Lord's response to Amendment No. 16 because he used the words "appropriate cases" in regard to copies, but I think he meant that "appropriate cases" means when a copy is possible and not that the prosecution should have a discretion as to whether copies should be

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provided. It is only a matter of physical possibility. I gladly take his silence as being confirmation that that is what he intended.

I could not ask for more because I have received the assurances that I was looking for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Clause 3 [Primary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 7:


Page 2, line 20, leave out second ("the") and insert ("a reasonable").

The noble Lord said: My Lords, in speaking to the amendment I speak also to Amendments Nos. 9, 10 and 26.

We raised this issue at Committee stage and took note of the opinion of the Committee on a different amendment to that which is now proposed. However, the issue of whether there should be an objective test for material that is to be disclosed is of such profound importance that it is necessary to return to it.

We object to the provision in Clause 3(1)(a) in regard to prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused. That is not good enough. We are not contesting the fact that prosecutors will have to take a view. We know that in practice that is the case. However, if the definition of what is to be disclosed is that which in the prosecutor's opinion should be disclosed, what would be the position if there is a subsequent query in the Court of Appeal or by the Criminal Cases Review Authority, for example, as to whether the conviction is safe. The answer given by the prosecutor could be: "I may have been wrong but in my opinion this is what I should do." If there is no objective test and the prosecutor's opinion is the only criterion, that could have very serious consequences. There is the possibility of miscarriages of justice. That would be a return to the position before the establishment of a Royal Commission. The same would apply if there were no power to re-examine forensic evidence in order to find a different interpretation from that arrived at originally.

The prosecutor's opinion should not be the ultimate deciding factor in disclosing material to the accused as part of the disclosure process. It cannot have been the Government's intention that that should be the case. I can understand that the Government wish to recognise that the prosecutor has to make a judgment at the beginning of the process as to what should be included. We understand that position, but that is implicit in the Bill whether or not the amendments are accepted.

The Government cannot have intended that that should be the end of the matter and that there should be no objective test in the event of a query and a possible miscarriage of justice.

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I move the amendment in a spirit of appeal to the Government. I do not think that they intend the possible grievous harm that might occur if those words are left in the Bill. I beg to move.

Lord Campbell of Alloway: My Lords, I wholly support the amendment. It is a very important principle. I wholly support the objective test. If there is no objective test it is all but impossible to apply and enforce the provisions as they are intended to be applied. A subjective test may be totally honest but totally erroneous. That is not a satisfactory yardstick for an important matter of this order. I should also like to ask the Government if they would be good enough to consider the matter with an open mind.

4.45 p.m.

Lord Williams of Mostyn: My Lords, I support the amendment on the basis that there is a tradition in this country which causes the libertarian right and the libertarian left to join hands. The tradition and principle for which I contend is that state power, whatever its name, should be subject to sensible restriction.

I concede, not on behalf of the first signatory to the amendment, that the amendment might have been more gracefully put on the basis of "in the prosecutor's reasonable opinion".

Lord Renton: Hear, hear.

Lord Williams of Mostyn: I am fortified by the nod and the audible support from the noble Lord, Lord Renton.

There can be no rational basis for objecting to the second amendment because it is intended to clarify the position that such decisions should be based on reason and not a subjective view.

Viscount Runciman of Doxford: My Lords, I support the comments made by the noble Lord, Lord Campbell of Alloway. The amendment would relieve the prosecutor of an invidious position. I cannot think that the prosecuting authority would object to the amendment.

Viscount Bledisloe: My Lords, I support the amendments, particularly Amendments Nos. 9 and 10. The noble Lord, Lord Williams of Mostyn, is correct in saying that the amendments should not contain the words "reasonable prosecutor", but that they should include the words, "in the reasonable opinion of the prosecutor".

Clause 3(3) refers to material that consists of recorded information. The prosecutor may decline to produce a copy because he says that it is not desirable. The accused then asks the judge to tell him to produce a copy. The judge says he cannot see any reason for not doing so, but as the prosecutor tells him that it is not desirable, that is his opinion and he cannot overrule that position. That is fantastical. I urge the Government to bring forward an amendment containing the words "in the reasonable opinion of the prosecutor".

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