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Lord Mackay of Drumadoon: My Lords, as presently framed, the amendment would place an obligation on the prosecutor to satisfy himself that the schedule of non-sensitive material provided under Clause 17(3) includes all the non-sensitive material. Accordingly, in addition to the issues of national security which my noble friend Lord Campbell of Alloway raised, the effect of the amendment would be to duplicate work that would have been carried out by a police officer acting in accordance with the code of practice. That duplication of work may have the effect of lessening the importance which the police officer attaches to the obligation that is placed upon him. Moreover, it would also place a heavy burden on the prosecutor who, in order to comply with the requirement, would need to check through all the material that the police had obtained in the course of the investigation.

The duplication arises in that Clause 16 requires the Secretary of State to prepare a code of practice, the provisions of which are designed to secure that the information obtained in a criminal investigation is recorded; that that record and any other material so obtained is retained; and that it is disclosed to the prosecutor who is given a written statement that activities required by the code have been fully complied with and carried out.

Clause 17 enables the code to provide that a police officer must give a prosecutor a document indicating the nature of any material in his possession which is of a prescribed description and which he does not believe is sensitive, and stating that he does not believe that it is sensitive.

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Those are important safeguards. It is in view of them and of the duplication of work that would result if the amendment were agreed to, together with the unnecessary burdens that would be placed on the prosecutor, and having regard to the view of national security which was taken by my noble friend Lord Campbell, that I hope that the noble Lord, Lord McIntosh, will not press his amendment.

Lord McIntosh of Haringey: My Lords, both the noble and learned Lord the Lord Advocate and the noble Lord, Lord Campbell of Alloway, referred to sensitive material as relating particularly to national security. I would be astonished if as much as 1 per cent. of sensitive material related to national security. Much more of it will be about, for example, material given in confidence--

Lord Campbell of Alloway: No.

Lord McIntosh of Haringey: My Lords, yes, that is one of the definitions of "sensitive material". As I said earlier, the protection of witnesses is also involved. Sensitive material goes very much wider than issues of national security and even if issues of national security were to be of paramount importance, which I do not believe that they are in this context, the answer given by my noble friend Lord Williams is entirely convincing.

We are not talking about any member of the legal profession; we are talking about senior members of the Crown Prosecution Service. If there is any question of sensitive material, surely those senior members of the Crown Prosecution Service can be trusted to see the material and decide whether it should be classified as sensitive.

I am utterly unconvinced by the argument put forward by the noble and learned Lord the Lord Advocate that somehow to have a further view of the prosecutor would be--and I noted the words that he used--"lessening the importance" of the police investigation because they would know that someone else would look at the case. I think more highly of the police. I believe that they will do their job properly because it must be done properly and because the code of practice provides for that. They will do it no less properly because someone else will look at their work afterwards. In the end, the court will look at all of the work that the police have done. That does not mean that the police have any less a sense of importance about adhering to proper standards.

I was not at all convinced by the argument, but it is not a matter on which I wish to seek the opinion of the House on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Compulsory disclosure by accused]:

[Amendment No. 13 not moved.]

Lord McIntosh of Haringey moved Amendment No. 14:

Page 3, line 27, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").

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The noble Lord said: My Lords, in moving Amendment No. 14, I shall speak to Amendment No. 18 and to Amendments Nos. 30 to 35 in Clause 10. They are all concerned with equality of arms; in other words, securing as far as possible, within the limits of what is reasonable to expect of the Crown Prosecution Service, that it should provide sufficient information to enable the defence to make a proper response in terms of defence disclosure.

We believe--the key wording is to be found in Amendment No. 18 rather than in Amendment No. 14--that the prosecution should make a proper statement of its case as part of primary disclosure; in other words, as part of the trigger for secondary disclosure. The words used in Amendment No. 18 are:

    "(a) the principal facts of the case for the prosecution;

    (b) the witnesses who will speak to those facts;

    (c) any exhibits relevant to those facts;

    (d) any proposition of law on which the prosecution proposes to rely;

    (e) the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).".

The amendments properly reflect the concerns which were discussed at some length in the report of the Royal Commission. They ensure that we have the equality of arms that is necessary and that they will result in better and fuller defence disclosures which will in turn affect beneficially the subsequent conduct of the preparation of the cases for the defence and the prosecution and, therefore, in the end result in a better trial.

As always, the amendments are constructive. They are not designed to deter the prosecution from doing its job properly or to make it more difficult for the prosecution to do its job properly. They are designed to enable the defence to give a better account of itself at the defence disclosure stage. I hope that on that basis they will be acceptable to the House.

I recognise that in many cases the conditions that have been laid down for a primary prosecution disclosure will cover the points which I have read out and which are provided for in Amendment No. 18. But surely it is desirable not only that they should be covered obliquely and incidentally in the wording of the Bill but that they should be explicit in the Bill. That is what a case statement is. That is the trigger, for example, for a preparatory hearing and that is what is possible and necessary for the defence to see in order to make a proper disclosure in turn. That is what ought to be on the face of the Bill. I beg to move.

Lord Ackner: My Lords, I support the spirit of the amendment. I have the advantage of having a copy of a letter which was written to the noble Lord, Lord McIntosh, by the noble Baroness, Lady Blatch. She has said that the provision is unnecessary, that it would involve a great deal of work and would be very expensive. I appreciate that it would involve more work and would carry with it expense. However, it is the result of the Government wanting a far greater disclosure than was anticipated by the Royal Commission.

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I do not criticise the Government for wanting a greater disclosure. The more cards on the table, so long as that does not conflict with the burden of proof, the better. The litigation can be dealt with not only more quickly but more effectively. Perhaps I may remind the House that all that was being sought by the Royal Commission can be found at page 99, paragraph 68, in these terms:

    "In most cases the disclosure of the defence should be a matter capable of being handled by the defendant's solicitor, (in the same way that alibi notices are usually dealt with at present). Standard forms could be drawn up to cover the most common offences, with the solicitor having only to tick one or more of a list of possibilities, such as "accident", "self-defence", "consent", "no dishonest intent", "no appropriation", "abandoned goods", "claim of right", "mistaken identification" and so on. There will be complex cases which may require the assistance of counsel in formulating the defence".

That is not the approach of the Crown in this situation. The Crown is seeking, by reason of the defence statement, what amounts, if this were a civil case, to a full defence answering the statement of claim. It places the obligation upon the defendant to state, in regard to the material provided to him, the matters on which he takes issue with the prosecution and in the case of each such matter the reasons why he has taken issue with the prosecution.

I do not believe that it is reasonable to expect him to do that if all that is provided to him is a bundle of witness statements and an indication of the nature of the offence. There are all kinds of inferences which might or might not be open to be drawn from those statements. The Crown is wanting the accused to focus on what is, if I may use the inelegant phrase, the guts of the potential prosecution so that he can say in terms, "I don't agree with this inference, I don't agree with this suggestion and these are my reasons".

The Crown cannot have it both ways. Either it goes to the additional expense of providing a statement, perhaps not as full as that required in the amendment but certainly a great deal more than a mere bundle of witness statements, or it reduces the obligation upon the defendant to answer the various matters which the defence statement involves. The Crown must make up its mind which it wants, and for the moment I support the amendment.

5.30 p.m.

Lord Campbell of Alloway: My Lords, I take a different view from that expressed by the noble and learned Lord. I would not have thought that proposed paragraphs (a) to (d) in Amendment No. 18 were necessary. Indeed, I would have thought that those matters had been broadly covered in the Bill's provisions. If that is not so, I should like to be told that I am wrong.

As regards paragraphs (e), that is mere argument. I could never support the amendment in that form. There is absolutely no necessity for the prosecutor to deploy his argument as to the consequences in relation to "counts" in order to put the accused on notice of the guts of the allegation. That is really going too far. In any event, such matters of consequence are matters of presentation. It is quite possible that, until the ruling of the court is received, it is impossible to crystallise

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exactly what are the consequences. However, what one can do for the Crown is to say, "These are the facts and these are the propositions of law on which we are going to rely". One cannot go beyond that. One cannot start trying to deal with consequences. That would be wholly oppressive. With respect to the noble and learned Lord, I suggest that that would be wholly unsuitable for this kind of procedure.

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